AF Holdings LLC, v. John Doe

Filing 17

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 11/13/2012.(mjc, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AF HOLDINGS LLC,

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Plaintiff,
v.
JOHN DOE,
Defendant.

Case No. 12 C 4222
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiff AF Holdings LLC (“AF Holdings”) has filed a Complaint against
John Doe, alleging copyright infringement of an adult-entertainment video. On
June 26, 2012, this Court granted AF Holdings leave to file subpoenas, pursuant to
Federal Rule of Civil Procedure 45, to identify certain information associated with
Internet Protocol (“IP”) address 24.13.57.221. This matter comes before the Court on
Movant’s Motion to Quash and Proceed Under a Pseudonym (“Movant”). Plaintiff filed
a response, and Movant failed to file a reply.
BACKGROUND
AF Holdings filed the instant Complaint on March 31, 2012, alleging that
John Doe “knowingly and illegally reproduced and distributed Plaintiff’s copyrighted
video by acting in concert with others via the BitTorrent file-sharing protocol and, upon
information and belief, continues to do the same.” (Compl. ¶ 1.) The copyrighted work
at issue in this Complaint is one of Plaintiff’s adult-entertainment videos, entitled
“Popular Demand” (the “Video”). Plaintiff alleges that “[i]n the course of monitoring
Internet-based infringement of its copyrighted content, Plaintiff’s agents observed

unlawful reproduction and distribution occurring over IP address 24.13.57.221 via the
BitTorrent file transfer protocol.” (Id. ¶ 4.) As Plaintiff explains, “BitTorrent is a
modern file sharing method (“protocol”) used for distributing data via the Internet.” (Id.
¶ 8.)
Plaintiff did not know Defendant’s actual name; instead, Defendant was known to
Plaintiff only by an IP address, which is a number assigned to devices, such as
computers, that are connected to the Internet. On June 26, 2012, this Court granted
AF Holdings leave to file subpoenas, pursuant to Federal Rule of Civil Procedure 45, to
identify certain information associated with Internet Protocol (“IP”) address
24.13.57.221, as follows: “information sufficient to identify John Doe associated with IP
address 24.13.57.221, including name, current (and permanent) address, telephone
number, e-mail address, and Media Access Control address.” (Dkt. No. 9.) AF Holdings
issued a subpoena, pursuant to Federal Rule of Civil Procedure 45, to Comcast Cable
Communications LLC (“Comcast”), to obtain the above information.
LEGAL STANDARD
Rule 45(c)(3)(A) states that the court must quash or modify a subpoena if it
“requires disclosure of privileged or other protected matter” or if it “subjects a person to
undue burden.” The party seeking to quash a subpoena has the burden of demonstrating
that it meets these requirements. See Pacific Century Int'l, Ltd. v. Does 1–37, 2012 WL
1072312, at *2 (N.D. Ill. Mar. 30, 2012).

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ANALYSIS
Movant raises three arguments in favor of her Motion. First, Movant argues that
AF Holdings’ identification of her IP address is incorrect; therefore, AF Holdings’
subpoena seeks information that is not relevant. Movant claims her IP address is
10.0.0.02 and, in support, Movant submits the affidavit of an individual1 (“Affiant”), who
avers, “I reviewed and examined the Internet Protocol address . . . for the personal
computer of [Movant] . . . [and] determined that the IP address for [the] personal
computer of [Movant] is 10.0.0.2.” (Ex. 1 ¶¶ 2-3.) The credibility of this conclusory
statement by Affiant, however, is outweighed by an affidavit submitted by AF Holdings
and a letter sent by Comcast to Movant.
With its Ex Parte Application for Leave to Take Expedited Discovery, AF Holdings
submitted an affidavit of Peter Hansmeier, a technician at a firm that monitors and
documents Internet-based piracy for clients, one of whom is AF Holdings. Hansmeier
provides a detailed explanation of the process he employed to identify John Doe’s IP
address and service provider. (See Dkt. No. 6-2 ¶¶ 22-27.) Hansmeier avers that he
“personally observed John Doe’s IP address 24.13.57.221 . . . downloading and
uploading the Video in a BitTorrent swarm.” (Id. ¶ 27.) To her instant Motion, Movant
attached a letter from the Comcast Legal Response Center, which identified Movant by
name and was sent to what appears to be her home address. (Dkt. No. 10 at 6.) The
letter states:
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Movant has identified herself by name when she filed the instant Motion.
Movant has also identified the affiant, who has the same last name as the Movant.
Because of the Court’s ruling below, that Movant may proceed under a pseudonym, the
Movant and Affiant are not identified by name in this ruling.
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AF Holdings, LLC has filed a federal lawsuit in the United
State District Court for the Northern District of Illinois.
You have been identified in our records via your assigned
Internet Protocol (“IP”) address, which is unique to each
user, in this lawsuit for allegedly infringing AF Holdings
LLC’s copyrights on the Internet by uploading or
downloading a movie without permission. This was
allegedly done using a device assigned the IP address
24.13.57.221 on 05/01/2012 02:01:32 GMT.
(Id.) The affidavit, coupled with the letter from Comcast to Movant, suggests that the IP
address 24.13.57.221 does belong to Movant.
Furthermore, even if the IP address 24.13.57.221 does not belong to Movant, her
argument that AF Holdings’s subpoena “seeks information that is not relevant,” pursuant
to Federal Rule of Civil Procedure 26(b)(1), lacks merit. AF Holdings alleges that
“Plaintiff’s agents observed unlawful reproduction and distribution occurring over IP
address 24.13.57.221 via the BitTorrent file transfer protocol.” (Compl. ¶ 4.) Therefore,
a subpoena, seeking to discover certain information associated with this IP address is
certainly “relevant to [AF Holding’s] claim” and is “reasonably calculated to lead to the
discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
Second, Movant argues that AF Holding’s subpoena seeks information that is
“‘privileged or other protected matter’ because the subpoena seeks information about an
IP address that does not belong to the undersigned.” (Mot. ¶ 8.) It is unclear what the
basis of Movant’s argument is. But to the extent Movant has argues that she has a
privacy interest in the information that is the subject of the subpoena, this argument also
fails. Another court in this district recently addressed this argument in
Hard Drive Productions v. Does 1-48, No. 11-cv-9062, 2012 WL 2196038, at *4 (N.D.
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Ill. June 14, 2012), noting that “courts have recognized that because internet subscribers
must convey their identity and other information to an ISP in order to establish an
account, they do ‘not have a reasonable expectation of privacy in their subscriber
information.’” Id. at *4; First Time Videos v. Does 1-500, 276 F.R.D. 241, 249 (N.D. Ill.
2011); Boy Racer, Inc. v. Does 1-34, No. 11–23035, 2012 WL 1535703, at *4 (S.D. Fla.
May 1, 2012).
Last, Movant argues that she should be permitted to proceed under a pseudonym
because her interest in proceeding anonymously outweighs the public’s right to access
this judicial proceeding. AF Holdings responds that Movant’s request should be denied
because Movant has already identified herself in documents filed in this Court. Further,
AF Holdings argues that leave to proceed pseudonymously should only be granted in “an
unusual case.” (Resp. at 4.)
A court in this district recently addressed a similar claim. In
Sunlust Pictures, LLC v. Does 1-75, No. 12-cv-1546, 2012 WL 3717768, at *1 (N.D. Ill.
Aug. 27, 2012) (Sunlust Pictures), the court noted that “Judges within this district have
recognized that plaintiffs in these types of cases might unfairly threaten to disclose
defendants’ identities in order to improperly leverage settlement negotiations.” Id; see
also Hard Drive Productions v. Does 1-48, No. 11–9062, 2012 WL 2196038, *6 (N.D.
Ill. June 14, 2012).
AF Holdings concedes that in “matters of a sensitive and highly personal nature
such as birth control, abortion, homosexuality or the welfare rights of illegitimate
children or abandoned families,” anonymous litigation may be permitted. (Resp. at 4,
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citing Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599
F.2d 707, 712-13 (5th Cir. 1979).) “A disputed allegation that [Movant] illegally
downloaded (and presumably viewed) a pornographic movie fits within this framework.”
Sunlust Pictures, 2012 WL 3717768, at *5.
In this case, the balance of the sensitive nature of the proceedings to Movant
against any unfair prejudice to AF Holdings is in favor of Movant. AF Holdings will not
be unfairly prejudiced because AF Holdings will know Movant’s true identity and be
able to prosecute its claims appropriately. As the court in Sunlust noted, “[the only
consequence to [movant] that proceeding anonymously will be diminution of the threat
of publicly disclosing Doe’s identity (thereby embarrassing Doe) as leverage to force a
settlement.” Id. Nor is there any harm to the public interest in having access to judicial
proceedings because Movant did not initiate this litigation. See id (“And because Doe (as
a defendant) has not purposely availed himself of the courts, the public’s interest in
knowing his identity is weaker.”). Accordingly, at this stage in litigation, Movant’s
request to proceed by pseudonym is granted; but this ruling may be revisited at later
stages of ligation should the case so proceed.

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CONCLUSION
For the reasons stated above, Movant’s Motion to Quash and to Proceed Under a
Pseudonym [10] is denied except that Movant is granted leave to proceed anonymously
in this case, and AF Holdings is ordered not to reveal Movant’s name or identifying
information. Because Movant has already identified herself by name in documents filed
on this Court’s docket, Docket Numbers 10 and 13, which identify Movant by name,
shall be placed under seal.

Date:

______________________________
JOHN W. DARRAH
United States District Court Judge

November 13, 2012

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