First Time Videos, LLC v. Does 1-76

Filing 31

RESPONSE by First Time Videos, LLCin Opposition to MOTION by Defendant Does 1-76 to quash 26 (Steele, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FIRST TIME VIDEOS, LLC,

)
)
Plaintiff,
)
)
v.
)
)
DOES 1 – 76,
)
)
Defendants.
)
_____________________________________ )

CASE NO. 1:11-cv-3831
Judge: Hon. Elaine E. Bucklo
Magistrate Judge: Hon. Michael T. Mason
RESPONSE OF PLAINTIFF FIRST
TIME VIDEOS, LLC, IN OPPOSITION
TO MOVANT’S MOTION TO QUASH
OR MODIFY SUBPOENA

An anonymous individual (“Movant”) claiming to be associated with Internet Protocol
(“IP”) address 71.239.83.151 filed a Motion to Quash or Modify an outstanding nonparty
subpoena issued to Comcast Cable Holdings, LLC (“Comcast”). (July 25, 2011 [hereinafter Mot.
to Quash #26], ECF No. 26.) Movant asks the Court to quash or modify this subpoena and to
sever Does 1–76 for misjoinder, arguing that joinder is improper (see id. passim), citing to
various court decisions from various jurisdictions in support of this argument (see id. at 2–5),
and accusing Plaintiff’s counsel of improper motives. (Id. at 1–2, 5–6.)
ARGUMENT
This brief consists of three parts: Part I argues that Movant should not be allowed to
proceed anonymously. Part II argues that Movant’s misjoinder challenge is premature at this
stage of the litigation. Part III argues that neither Movant’s ad hominem attacks on Plaintiff’s
counsel nor his citations to unrelated authority provide a basis for quashing the subpoena.
///
///
///
///
///

I.

MOVANT SHOULD NOT BE ALLOWED TO PROCEED ANONYMOUSLY
By bringing his motion anonymously, Movant improperly attempts to circumvent the

presumptive openness of judicial proceedings. The Court should deny Movant’s attempt to
proceed anonymously because he fails to meet or discuss his burden to justify doing so. FRCP 11
provides that “[e]very pleading, written motion, and other paper must be signed” and “must state
the signer’s address, e-mail address, and telephone number.” Fed. R. Civ. P. 11(a). “[P]arties to a
lawsuit must typically openly identify themselves in their pleadings to ‘protect[] the public’s
legitimate interest in knowing all of the facts involved, including the identities of the parties.’”
United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (citing Doe v. Frank, 951
F.2d 320, 322 (11th Cir. 1992)); see also Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005).
Even so, it is within the discretion of the district court to grant the “rare dispensation” of
anonymity. Microsoft Corp., 56 F.3d at 1464 (quoting James v. Jacobson, 6 F.3d 233, 238 (4th
Cir. 1993)).
Pseudonymous litigation has been permitted where the issues are “matters of a sensitive
and highly personal nature such as birth control, abortion, homosexuality or the welfare rights of
illegitimate children or abandoned families.” Southern Methodist Univ. Ass’n of Women Law
Students v. Wynne & Jaffe, 599 F.2d 707, 712–13 (5th Cir. 1979). The district court has a duty to
consider the impact of a party’s anonymity on both the public interest in open proceedings and
on fairness to the opposing party. Microsoft Corp., 56 F.3d at 1464. In conducting this balance,
the court must weigh a plaintiff’s “privacy concerns against the presumption of openness of
judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). Factors for the court to
consider include:
(1) whether the justification asserted by the requesting party is merely
to avoid the annoyance and criticism that may attend any litigation
or is to preserve privacy in a matter of sensitive and highly
personal nature;
(2) whether identification poses a risk of retaliatory physical or mental
harm to the requesting party or even more critically, to innocent
non-parties;
(3) the ages of the persons whose privacy interests are sought to be
protected;
2

(4) whether the action is against a governmental or private party; and
(5) the risk of unfairness to the opposing party from allowing an action
against it to proceed anonymously.
James v. Jacobson, 6 F.3d at 238. Because Movant fails to discuss the factors that would justify
anonymity, let alone to argue that these factors weigh in favor of anonymity, Movant’s implied
request to proceed anonymously should be denied. At least two other federal courts came to the
same conclusion and ordered John Does who filed papers to also file a notice indicating their
identity by name, address, e-mail address, and telephone number. Order to Show Cause 1–2,
Hard Drive Prods. v. Does 1–21, No. 4:11-cv-59-SEB-WGH (S.D. Ind. July 27, 2011) (Barker,
J.), ECF No. 22 (“[T]he Court cannot permit anonymous persons to litigate before it pro se.”);
Order Denying Implied Request to Proceed Anonymously 3, Achte/Neunte Boll Kino
Beteiligungs GMBH & CO. KG, v. Does 1–4,577, No. 10-453 (RMC) (D.D.C., Sept. 16, 2010).
This Court should do the same, and deny John Does such as Movant the ability to proceed
anonymously.
II.

MOVANT’S MISJOINDER CHALLENGE IS PREMATURE

Movant’s misjoinder challenge is premature at this early stage of the litigation. Movant
argues that by joining seventy-six Doe Defendants, Plaintiff has created a situation of misjoinder.
(E.g., Mot. to Quash #26 at 3–6.) However, courts considering motions on nearly-identical facts,
both in this District and across the United States, have decided that misjoinder challenges are
premature at this stage in the litigation. E.g., Order 2, MCGIP, LLC v. Does 1–14, No. 11-cv2887 (N.D. Ill. July 26, 2011) [hereinafter Lindberg July 26 Order] (Lindberg, J.), ECF No. 19;
Order Den. Does’ Mots. to Quash 2:1–9, Hard Drive Prods. v. Does 1–46, No. C-11-1959 (N.D.
Cal. June 16, 2011) (Chen, J.), ECF No. 19; MGCIP [sic] v. Does 1–316, No. 10-C-6677, 2011
WL 2292958, at *2 (N.D. Ill. June 9, 2011) [hereinafter Kendall June 9 Decision] (Kendall, J.),
ECF No. 133; MCGIP, LLC v. Does 1–18, No. 11-1495, 2011 WL 2181620, at *1 (N.D. Cal.
June 2, 2011) (Chen, J.) (citing Voltage Pictures, LLC v. Does 1–5,000, No. 10-0873, 2011 WL
1807438, at *4 (D.D.C. May 12, 2011)) (finding joinder “proper” at early stage of litigation,

3

even where movant’s assertion of misjoinder “may be meritorious”); Donkeyball Movie, LLC v.
Does 1–18, No. 10-1520, 2011 WL 1807452, at *4 (D.D.C. May 12, 2011) (same).
At this stage in the litigation, where discovery is underway only to learn identifying facts
necessary to permit service on Doe Defendants, joinder is plainly proper. E.g., Kendall June 9
Decision, 2011 WL 2292958, at *2. Plaintiff has alleged that the Doe Defendants have infringed
Plaintiff’s copyrighted Video through the same file-sharing protocol—BitTorrent—that operates
through simultaneous and sequential computer connections and data transfers among the users.
(Compl. ¶¶ 4, 8, 11–13, 15, 22–24.) Such allegations have been held sufficient to sustain joinder
while discovery of Doe Defendants’ identities is underway. MCGIP, LLC, 2011 WL 2181620, at
*4 (Chen, J.) (holding such allegations were sufficient at same early stage of litigation and
postponing joinder discussion); Donkeyball, 2011 WL 1807452, at *4 (same); Voltage Pictures,
2011 WL 1807438, at *4 (same); see also Call of the Wild Movie v. Does 1–1,062, No. 10-455,
2011 WL 996786, at *4–5 (D.D.C. Mar. 22, 2011) (finding plaintiffs’ allegations that the Doe
defendants used BitTorrent, that BitTorrent “makes every downloader also an uploader,” and that
any peer who has completed a download “is automatically a source for the subsequent peer”
were sufficient to make claims against defendants “logically related”).
Discretionary concerns also weigh against severance at this stage of the litigation. The
discretionary joinder concerns—avoiding prejudice and delay, ensuring judicial economy, and
safeguarding principles of fundamental fairness—were thoroughly examined in a highly similar
factual and procedural context by Judge Howell of the United States District Court for the
District of Columbia. Call of the Wild Movie, 2011 WL 996786, at *4–7. “Joinder will avoid
prejudice and needless delay for the only party currently in the case, namely the plaintiff, and
promote judicial economy.” Id. at *4. Furthermore, “[t]he putative defendants are not prejudiced
but likely benefited by joinder, and severance would debilitate the plaintiffs’ efforts to protect
their copyrighted materials and seek redress . . . .” As Judge Howell reasoned, and as Plaintiff’s
counsel has learned through experience, severance would be especially contrary to the interests
of any individuals who have been named as Doe Defendants multiple times in the same suit for
4

multiple observed instances of infringing activity, a possibility that is a consequence of the
dynamic reassignment of many consumer IP addresses:
[S]ome IP addresses may relate to the same person, who is
engaged in the allegedly infringing activity claimed by plaintiffs.
Severance of the putative defendants associated with different IP
addresses may subject the same Time Warner customer to multiple
suits for different instances of allegedly infringing activity and,
thus, would not be in the interests of the putative defendants.
Call of the Wild Movie, 2011 WL 996786, at *6. The same logic applies to Comcast in Illinois,
and thus all discretionary factors weigh against severance at this stage of the litigation.
At a later point in this litigation, after Doe Defendants have been named and served, they
may raise joinder issues under Fed. R. Civ. P. 20, and move to sever under Fed. R. Civ. P. 21,
and that will be the appropriate time for the Court to evaluate the merits of such arguments. See
Lindberg July 26 Order 2 (“These arguments [including joinder] are premature . . . . The Does
may raise these issues when plaintiff has named them as defendants, if that action occurs.”);
Kendall June 9 Decision, 2011 WL 2292958, at *2 (“The putative defendants may re-raise the
issue of improper joinder should they become named defendants in this case.”); Donkeyball,
2011 WL 1807452, at *8; Voltage Pictures, 2011 WL 1807438, at *8; see also MCGIP, LLC,
2011 WL 2181620, at *1 (Chen, J.). The Court should deny the instant motion because Movant’s
joinder challenge is premature.
III.
NEITHER MOVANT’S AD HOMINEM ATTACKS ON PLAINTIFF’S COUNSEL
NOR HIS CITATIONS TO UNRELATED AUTHORITY PROVIDE A BASIS FOR
QUASHING THE SUBPOENA
Movant accuses Plaintiff’s counsel of selecting an improper litigation strategy in order to
“avoid travel” and of “abuse of the litigation system.” (Mot. to Quash #26 at 2, 6.) The list of
permissible grounds for quashing or modifying a subpoena does not include ad hominem attacks.
See Fed. R. Civ. P. 45(c)(3). Indeed, Movant offers only sweeping generalizations—and no
specific allegations—regarding the activities of Plaintiff’s counsel. (See generally Mot. to Quash
#26.)

5

Movant cites to various cases in support of his motion, arguing that they should be
considered “nearly identical” to the instant case. (Mot. to Quash #26 at 2–3.) However, Movant
makes little effort to establish the relevance of the cited cases. For example, where Movant cites
to cases involving Plaintiff’s counsel (see id.), Movant fails to establish the relevance of orders
made in factual and procedural contexts different from the instant motion. See, e.g., Mem. Op.
and Order, CP Prods., Inc. v. Does 1–300, No. 10-C-6255 (N.D. Ill. Feb. 24, 2011) (Shadur, J.)
(denying plaintiff’s motion for reconsideration of the court’s Feb. 7, 2011 memorandum order,
which dismissed the action under Fed. R. Civ. P. 4(m) without prejudice), ECF No. 32. Movant
also fails to inform the Court that the cases he cites are unrepresentative of the many cases filed
by Plaintiff’s counsel in which courts, including courts in this District, have allowed the
respective plaintiffs to proceed with early discovery. See, e.g., Lindberg July 26 Order (denying
anonymous motions to quash or vacate subpoenas); Kendall June 9 Decision, 2011 WL 2292958
(denying anonymous motions to quash, dismiss, and sever); MCGIP v. Does 1–49, No. 11-1801,
2011 WL 1748461 (N.D. Cal. April 22, 2011) (Fogel, J.); Order Granting Pl.’s Ex Parte Mot. for
Expedited Disc., MCGIP v. Does 1–21, No. 11-1783 (N.D. Cal. April 19, 2011) (Beeler, J.), ECF
No. 8. As Judge Chen of the Northern District of California wrote in response to similar attacks
on Plaintiff’s counsel, “the fact that Plaintiff has initiated other lawsuits does not mean that this
lawsuit (or even the others) is without any merit.” MCGIP, 2011 WL 2181620, at *1.
Further, Movant cites to various cases specifically to support his misjoinder challenge.
(See Mot. to Quash #26 at 3–5.) But Movant fails to distinguish between the present action—
where all alleged infringers used the BitTorrent protocol and exchanged pieces of the file with
one another as part of a civil conspiracy—and actions in which infringers were alleged to have
used older, less interconnected peer-to-peer file-sharing protocols. (See id.) Many courts
distinguish between these. See, e.g., Kendall June 9 Decision, 2011 WL 2292958, at *2
(“[G]iven the decentralized nature of BitTorrent’s file-sharing protocol . . . the Court finds that
sufficient facts have been plead to support the joinder of the putative defendants at this time.”);
Call of the Wild Movie, 2011 WL 996786, at *4–5 (considering contrary authority based on older
6

file-sharing protocols and nevertheless finding that plaintiffs’ factual allegations about the
“nature of a BitTorrent protocol” were sufficient to make copyright infringement claims against
multiple defendants “logically related”). The Court should deny the instant motion because
Movant’s ad hominem attacks and his citations to unrelated authority are not bases for quashing
the subpoena.
CONCLUSION
The Court should deny Movant’s motion. Movant’s implied request to proceed
anonymously should be denied, Movant’s misjoinder arguments are premature at this early stage
of the litigation, and neither Movant’s ad hominem attacks on Plaintiff’s counsel nor his citations
to unrelated authority provide a basis for quashing the subpoena.

Respectfully submitted,
FIRST TIME VIDEOS, LLC
DATED: July 29, 2011
By:

7

/s/ John Steele
John Steele (Bar No. 6292158)
Steele Hansmeier PLLC
161 N. Clark St.
Suite 4700
Chicago, IL 60601
312-880-9160; Fax [phone]
[e-mail]
Attorney for Plaintiff

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on July 29, 2011, all counsel of record who are deemed to
have consented to electronic service are being served a true and correct copy of the foregoing
document using the Court’s CM/ECF system, in compliance with Local Rule 5.2(a).

/s/ John Steele
JOHN STEELE

8