Boy Racer, Inc. v. John Does 1-34
Filing
59
ORDER denying 26 Amended Motion to Quash Third Party Subpoena or for the Entry of a Protective Order. Signed by Magistrate Judge Jonathan Goodman on 5/1/2012. (dkc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 11-23035-GRAHAM/GOODMAN
BOY RACER, INC .,
Plaintiff,
v.
JOHN DOES 1-34,
Defendants.
___________________________________1
ORDER ON AMENDED MOTION TO QUASH
THIRD PARTY SUBPOENA OR FOR ENTRY OF PROTECTIVE ORDER
This matter is before the Court by Order of Reference from the District
Court of John Doe #32's Amended Motion to Quash Third Party Subpoena or for
the Entry of a Protective Order. [ECF Nos . 26 ; 29]. For the reasons below, the
Undersigned DENIES the motion .
I.
INTRODUCTION
a. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed this lawsuit against 34 "John Doe" defendants .
Plaintiff
alleges that the Does violated federal copyright laws by downloading and
distributing an adult video , "Fuckabilly," using the BitTorrent file sharing protocol.
Plaintiff has not named or served any of the Does yet, but Plaintiff moved for and
received an order allowing early discovery.
Plaintiff subsequently issued and
served Rule 45 records subpoenas from an Illinois federal district court on the
Doe 's internet service providers (ISPs) . The subpoenas request that the ISPs
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identify the account holders of the internet protocol (IP) addresses involved in the
illegal downloads .
Upon receipt of the subpoenas, certain ISPs notified the
holders of the accounts listed in the subpoenas.
Counsel for three individuals claiming to be account holders subsequently
filed motions challenging the subpoenas . The first movant, filing under the name
John Doe #32, filed an Amended Motion to Quash Third Party Subpoena or for
the Entry of a Protective Order. [ECF No . 26] . The second movant, filing under
the name John Doe #8, filed a Motion to Quash, Motion for Protective Order,
Motion to be Severed from the Case, and Motion to Dismiss. [ECF No. 13]. The
third movant, filing as "John Doe (IP Address 66 .229.114.127)," filed a Motion to
Dismiss/Sever and for a Protective Order and/or to Quash Subpoena . [ECF No.
14]. The District Court referred all three motions to the Undersigned, who held a
hearing on the motions on April 2, 2012 . [ECF Nos. 29; 34; 49] .
Plaintiff explained during the hearing that it does not know the actual
names of the John Doe Defendants . Instead, Plaintiff has so far only been able
to identify the IP addresses the Does used to download and to distribute the adult
film . Plaintiff contends that, once it learns the identity of the account holders, it
will contact the account holders to investigate whether they or some other
individuals used the IP addresses to violate Plaintiff's copyright by downloading
the adult film .
To that end, Plaintiff conceded at the hearing that the account holders
may not be the violators -- and should therefore not necessarily ever be named
defendants -- because persons other than the account holders may have
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downloaded the video while using the account holders' IP addresses.
For
example , an account holder's spouse, child, friend, roommate or guest may have
used a computer in the home to download the purportedly protected adult video.
Similarly, if the internet service account is associated with a wireless network and
the network is not password protected or encrypted, then anyone with a wireless
enabled device who is within the network's range may have been the one who
unlawfully downloaded the video .
b. THE ARGUMENTS
In response to the motions challenging the subpoenas, Plaintiff made two
arguments .
First, Plaintiff argued that the movants are seeking relief in the
wrong court. Plaintiff issued the subpoenas from a federal district court in Illinois.
Therefore, Plaintiff contended, Federal Rule of Civil Procedure 45 does not
authorize this Court to quash the subpoenas and instead requires movants to
pursue their motion with the Illinois court. Second, Plaintiff argued that movants
lack standing to challenge the subpoenas because the subpoenas were issued to
the ISPs, not to the movants, and the ISPs did not object or file a motion
challenging the subpoenas.
The movants did not directly address Plaintiff's Rule 45 argument.
Instead, movants argued that the Court should quash the subpoenas because
Plaintiff obtained the subpoenas from the Illinois court in bad faith to divest this
Court of jurisdiction and to make it more difficult for the movants to challenge the
subpoenas.
Movants also argued that they are entitled to a protective order
because : (a) the subpoenas request personal and confidential information
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belonging to movants, not to the ISPs; and (b) Plaintiff issued the subpoenas for
an unreasonable purpose -- to extort a quick settlement from movants by
pressuring them to pay Plaintiff in order to avoid the shame of being named in a
lawsuit involving an adult film.1
II.
DISCUSSION
a. FEDERAL RULES OF CIVIL PROCEDURE
There are two procedural rules applicable to Doe #32's motion.
First, Federal Rule of Civil Procedure 45(c) provides, in pertinent part, as
follows:
3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing
court must quash or modify a subpoena that:
(iii) requires disclosure of privileged or other protected
matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Rule 45(c)(3)(8)(i) also states that a court "may" quash or modify a subpoena if,
for example, it requires "disclosing a trade secret or other confidential research,
development or commercial information."
The District Court referred a total of three motions [ECF Nos. 13; 14; 15]
to the Undersigned, but this order only addresses [ECF 1\10. 26] John Doe #32's
amended motion. This is because the other two motions request relief (dismissal
and severance) on which the Undersigned may enter only a report and
recommendations. The Undersigned notes, however, that to the extent those
other two motions request an order quashing the subpoena or a protective order
and are not already moot, the Undersigned will recommend that the District Court
deny those requests for the reasons discussed in this order.
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Second, Federal Rule of Civil Procedure 26(c) provides, in pertinent part,
that:
(1) In General. A party or any person from whom
discovery is sought may move for a protective order in
the court where the action is pending--or as an
alternative on matters relating to a deposition, in the
court for the district where the deposition will be taken
. .. The court may, for good cause, issue an order to
protect a party or person from annoyance ,
embarrassment, oppression, or undue burden or
expense
Because the moving party has the burden to show a particular need for
protection under Rule 26(c), Pensacola Firefighters' Relief Pension Fund Board
of Trustees v. Merrill Lynch, Pierce, Fenner, & Smith, No. 3:09cv53/MCR/MD,
2011 WL 3512180, at *2 (N.D. Fla. July 7, 2011), "[b)road allegations of harm,
unsubstantiated by specific examples or articulated reasoning , do not satisfy the
Rule 26(c) test."
Trinos v. Quality Staffing Servs. Corp., 250 F.R.D . 696, 698
(S .D. Fla . 2008) .
b. THE AF HOLDINGS CASE
The challenge to the third party subpoenas in this case is similar to the
one addressed by a sister court in AF Holdings, LLC v. Does 1-162, No. 11
23036-civ, 2012 WL 488217 (S.D . Fla . Feb. 14, 2012). In fact, the same law firm
and lawyers who represented the plaintiff in that case represent the Plaintiff in
this case.
Other than the title of the adult video involved (i.e ., the one in AF
Holdings is "Sexual Obsession") and the number of John Doe defendants (162),
the situation is virtually identical. The Undersigned finds that the reasoning and
analysis of AF Holdings is logical, sound and compelling.
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The Court therefore
ADOPTS the relevant holdings in that case and DENIES Doe #32 's motion to
quash/for a protective order.
i. JURISDICTION
The AF Holdings court first addressed the threshold issue of whether Rule
45 authorizes a federal court to quash a subpoena issued by another district
court . Noting that the rule permits only "the issuing court" to quash or modify a
subpoena, the AF Holdings Court held that it, a Florida district court , lacked
authority to quash a subpoena issued from an Illinois district court. Many other
courts agree with this text-based conclusion . E.g., Chick-Fil-A v. ExxonMobil
Corp., No . 08-61422-CIV, 2009 WL 2242392, at *1 (S .D. Fla . June 24 , 2009);
Howard v. Hartford Life & Accident Ins. Co, No . 3:10-cv-192-J-34TEM, 2011
WL 2533800 , at *8 (M.D. Fla. June 27, 2011).
The Court concludes that it similarly lacks jurisdiction to quash subpoenas
issued by a federal court in Illinois and therefore DENIES Doe #32 's motion to
the extent he requests an order quashing the subpoena.
ii. STANDING
Next, the AF Holdings court analyzed whether the movant in that case had
standing to challenge a subpoena directed to an ISP. That court concluded the
John Doe movant lacked standing to challenge the subpoena because it was
issued to the ISP , Verizon, not to the John Doe himself. The AF Holdings Court
recognized that, although the general rule is that a party may not seek to quash
or modify a subpoena on behalf of the non-party to which it was issued, there are
exceptions. But it found that the only theoretically available exception -- when
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the subpoena requires "disclosure of privileged or other protected matter" -- did
not assist the Doe movant for several reasons.
First, the Court noted that the privacy or free speech interests of John Doe
defendants are "minimal" in "cases of this kind." AF Holdings, 2012 WL 488217,
at *3. This is because "individuals who use the Internet to download or distribute
copyrighted works are engaged in only a limited exercise of speech and the First
Amendment
does
not
necessarily
protect
such
persons'
identities
from
disclosure." Id. (citing Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp.
2d 332, 349-54 (D. D.C. 2011); London-Sire Records, Inc. v. Doe I, 542 F. Supp.
2d, 153, 179 (D. Mass. 2008); Uberty Media Holdings v. Swarm Sharing Hash
File, No. 11-10802-WGY, 2011 WL 5161453, at *6 (D. Mass. Oct. 31, 2011)
(noting that mere economic harm and embarrassment do not overcome the
public interest in full disclosure)).
Focusing on the alleged privacy interest at stake, the AF Holdings court
rejected the Doe movant's argument and branded it as unpersuasive because
that John Doe (like the John Does here) freely provided the information to the
ISP. The court emphasized that "internet subscribers do not have a reasonable
expectation of privacy in subscriber information they have already provided to
their Internet Service Providers." AF Holdings, 2012 WL 488217, at *4 (internal
quotation marks and brackets omitted). Once again, the AF Holdings court cited
ample authority in support of this conclusion. See, e.g., First Time Videos, LLC
v. Does 1-18, No. 4:11-cv-69-SEB-WGH, 2011 WL 4079177, at *1 (S.D. Ind.
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Sept. 13, 2011); First Time Videos, LLC v. Does 1-500, 276 F.R. D. 241 , 249
(N.D. III. 2011).
In fact, the AF Holdings Court found that individuals have no protected
privacy interests in their names, addresses, phone numbers, email addresses or
Media Access Control addresses when copyright infringement is alleged. 2012
WL 488217, at *4.
This result flows from the reality that, whatever privacy
interest a John Doe Defendant may have in his/her contact information, it "is
overcome by the Plaintiff's need to identify and pursue litigation against
purported infringers." Id. (citing Arista Records, LLC v. Does 1-19, 551 F. Supp.
2d 1, 8-9 (DD.C. 2008)).
The AF Holdings court also rejected the same type of extortion arguments
raised in this case. In doing so, that court relied on the Liberty Media Holdings
case for the notion that "the potential embarrassment or social stigma that [the
Doe Defendants] may face once their identities are released in connection with
this lawsuit is not grounds for allowing them to proceed anonymously." 2011 WL
5161453, at *7. In a final but related point, the AF Holdings Court noted that the
Federal Rules of Civil Procedure and the Local Rules generally require a litigant
to identify himself in order to protect the public's right of access to judicial records
and information about cases.
2012 WL 488217, at *5.
That court therefore
concluded it was inappropriate for the movant to hurl personal attacks about
extortion "from behind a shroud of anonymity." Id.
Applying these standards, the Undersigned concludes that Doe #32 lacks
standing to challenge the subpoena requesting information about his IP address
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under Rule 26(c).
The Court therefore also DENIES Doe #32's motion to the
extent he requests that the Court enter a protective order.
III.
CONCLUSION
The Court DENIES Doe #32 's amended motion to quash and/or for a
protective order [ECF 26] .2
DONE and ORDERED, in Chambers , in Miami , Florida, this
Of~' 2012.
JONA T
UNITED
L
S'tday
N GOODMAN
TATES MAGISTRATE JUDGE
Copies furnished to:
The Honorable Donald L. Graham
All counse l of record
2
Doe #32 briefly comments in a footnote to his motion that U
[t]here is
significant doubt that Plaintiff has sufficiently stated a claim for relief' but does
not discuss this argument in any detail. [ECF No . 26 , p. 6 n.5] . The Court will
therefore not address this point further.
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