Venice PI, LLC. v. John Doe 1 et al

Filing 30

ORDER denying 18 John Doe 2's Renewed Motion to Quash by Magistrate Judge Michael E. Hegarty on 10/30/2017. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01850-WYD-MEH
VENICE PI, LLC,
Plaintiff,
v.
JOHN DOES 1–6, 8–14, 16–25,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Defendant John Doe 2, through counsel, has filed a motion seeking to quash the subpoena
Plaintiff served on his internet service provider (“ISP”), Comcast, regarding subscriber IP Address
73.95.135.48. Primarily, John Doe 2 argues he is a resident of Minnesota and, thus, the Court has
no personal jurisdiction over him. John Doe 2 also argues the Plaintiff fails to allege sufficient facts
demonstrating a prima facie copyright infringement claim, has not shown reliable methodology in
identifying potential defendants, and has improperly joined the Defendants in this case. The Court
finds John Doe 2 has failed to articulate how these arguments are proper objections to a subpoena
served pursuant to Fed. R. Civ. P. 45 but, nevertheless, the Court did consider the latter three in
analyzing whether the subpoena was proper, then permitted Plaintiff to serve the subpoena. The
Court then concluded the Plaintiff properly demonstrated specificity and good cause in seeking
discovery for the identities of purported infringers. Here, the Court finds no basis on which to quash
the subpoena and will deny John Doe 2's motion.
As for whether Plaintiff has alleged a plausible copyright claim or used a “reliable” method

for identifying the Defendants, such information remains subject to proof through this action. As
in any other action, the plaintiff need not prove a defendant committed the alleged wrongdoing
before engaging in discovery. Certainly, through such early discovery, the Plaintiff can obtain
information from the named Defendant him- or herself concerning whether the Defendant actually
committed the infringement. The Court concludes its order granting pre-Rule 26 discovery is proper
and based on sufficient specificity and good cause demonstrated by the Plaintiff.
Regarding whether the Defendants are properly joined, first (and most importantly), the plain
language of Rule 45 does not authorize the Court to quash a subpoena based on misjoinder. Fed.
R. Civ. P. 45(d)(3)(A) requires the Court to quash or modify a subpoena that: (i) fails to allow a
reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified
in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or
waiver applies; or (iv) subjects a person to undue burden. No other grounds are listed.
In this district, a party has no standing to quash a subpoena served on a third party, except
as to claims of privilege or upon a showing that a privacy issue is implicated. Windsor v.
Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997) (“[a]bsent a specific showing of a privilege or
privacy, a court cannot quash a subpoena duces tecum”); see also Broadcort Capital Corp. v.
Flagler Secs., Inc., 149 F.R.D. 626, 628 (D. Colo. 1993). Other courts in the Tenth Circuit have
held that a party has standing to challenge a subpoena served on a third party only on the basis of
privilege, personal interest, or proprietary interest. Howard v. Segway, Inc., No. 11-CV-688-GFKPJC, 2012 WL 2923230, at *2 (N.D. Okla. July 18, 2012) (citing Washington v. Thurgood Marshall
Acad., 230 F.R.D. 18 (D.D.C. 2005)).
Objections unrelated to a claim of privilege or privacy interests are not proper bases on

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which a party may quash a subpoena. Windsor, 175 F.R.D. at 668; see also Oliver B. Cannon &
Son, Inc. v. Fidelity & Cas. Co. of New York, 519 F. Supp. 668, 680 (D.C. Del. 1981) (movant lacks
standing to raise objections unrelated to any right of privilege). Thus, even where a party has
standing to quash a subpoena based on privilege or a personal right, he or she lacks standing to
object on the bases of relevance or undue burden. Howard, 2012 WL 2923230, at *2 ; see also
Malibu Media, LLC v. John Does 1-15, No. 12-2077, 2012 WL 3089383, at *8 (E.D. Pa. July 30,
2012) (noting that a defendant seeking to quash a subpoena on an internet service provider “is not
faced with an undue burden because the subpoena is directed at the internet service provider and not
the [d]efendant.”).
Comcast, the recipient of the subpoena, has not objected to its terms. John Doe 2’s objection
regarding misjoinder, in addition to being improper under Rule 45, is also misplaced here. The
Court observes that severing defendants would delay, but not eliminate, Plaintiff’s efforts to obtain
John Doe 2's identifying information from Comcast. Simply put, severance affects the timing of
disclosure but not the underlying right. In this context, such a delay may prove fatal to Plaintiff’s
claims insofar as the information Plaintiff seeks is subject to destruction. Given the inevitable
disclosure of the information at issue in this subpoena, it seems judicial efficiency is best promoted
by declining to reach the question of joinder at this time.
Likewise, John Doe 2's argument that the Court lacks personal jurisdiction does not persuade
the Court to quash the subpoena. Even if it were a proper objection, John Doe 2’s affidavit (if the
Court were to overrule a hearsay objection) and the Plaintiff’s investigator’s affidavit raise a
question of material fact as to whether the infringement occurred in Colorado and, thus, whether the

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Court has personal jurisdiction over John Doe 2 as a Defendant in this case.1 With this limited
evidence and at this stage of the litigation, the Court may not make findings as to John Doe 2's
personal jurisdiction argument.
Certainly, just as John Doe 2 has a right to defend him- or herself in a civil lawsuit and even
if there is no ultimate liability, “Plaintiff has a constitutional right to file a lawsuit and engage in
discovery to determine whether a defendant or someone using a defendant’s IP address infringed
on its protected works,” provided the Plaintiff has a good-faith basis under Rule 11 for bringing suit.
Malibu Media, LLC v. Maness, No. 12-cv-01873-RBJ-MEH, 2012 WL 7848837, at *6 (D. Colo.
Dec. 4, 2012), recommendation adopted by 2013 WL 1397275 (D. Colo. Apr. 5, 2013). Similarly,
Plaintiff shares the same right as all litigants to settle or dismiss its claims before engaging in
discovery and prior to the filing of any dispositive motions. Id.
For these reasons, the Court finds that John Doe 2 has not met his or her burden of showing
that the Court should quash the subpoena Plaintiff served on Comcast in this case. Therefore,
Defendant John Doe 2's Motion to Quash Comcast Subscriber IP Address 73.95.135.48 [filed
September 20, 2017; ECF No. 18] is denied.
Entered and dated at Denver, Colorado, this 30th day of October, 2017.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

1

Although permitted to do so, John Doe 2 did not file a reply brief responding to
Plaintiff’s arguments in this respect.
4