SITE B, LLC v. DOES 1-51

Filing 26

Memorandum Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/7/2014:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SITE B, LLC,
Case No. 13 C 5295

Plaintiff,

Hon. Harry D. Leinenweber

v.
DOES 1 - 51,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Doe 39’s Motion to Quash.

For

the reasons stated herein, the Motion is denied.
I.

BACKGROUND

On July 24, 2013, Plaintiff Site B, LLC (“Site B”) filed this
action against 51 “John Doe” Defendants (“Defendants”), alleging
copyright infringement in violation of the United States Copyright
Act of 1976, 17 U.S.C. §§ 101 et seq.
motion pictures.

Site B develops and produces

In its Complaint, Site B alleges that the

Defendants used BitTorrent, a software protocol that facilitates
large data transfers across peer-to-peer networks, to reproduce and
distribute unlawfully Site B’s copyrighted motion picture entitled
“Under the Bed.”
In order to share data over BitTorrent, an initial fileprovider

(in

tech

parlance,

the

“seeder”)

first

must

upload

(“seed”) a file to the torrent network. Other users (“peers”) then

connect to the seed file to download it.

As peers download the

seed file, they also transmit pieces of that file automatically to
subsequent downloaders for as long as they remain connected to
BitTorrent. Every peer who downloads the file receives a different
piece of the file from every user that has already downloaded it.
The group of peers and seeders uploading and downloading the same
file is called a “swarm.”
Site B alleges that each of the Defendants downloaded and
uploaded “Under the Bed” in the same swarm at various times between
April 19 and May 28, 2013.

According to Site B, the Defendants

participated deliberately in the same swarm for the purpose of
“reproducing, exchanging and distributing copyrighted material
unique to the swarm.”

(Compl. ¶ 14, ECF No. 1).

Site B also

claims that Defendants engaged in the same transaction, occurrence,
or series of transactions or occurrences by participating in the
same swarm.
Site B only knows each Defendant by his or her Internet
Protocol address (“IP address”), a unique numerical code that
Internet Service Providers (“ISPs”) assign to each computer and
device connected to the Internet.
served

subpoenas

on

the

On September 4, 2013, Site B

Defendants’

ISPs

seeking

identifying

information for each Defendant, including their names, addresses,
telephone
addresses.

numbers,

email

addresses,

and

Media

Access

Control

Defendant Doe 39 (“Doe 39”) has moved to quash the

- 2 -

subpoena duces tecum that Site B served on his ISP, Comcast Cable
Holdings, LLC (“Comcast”).
II.

LEGAL STANDARD

A court must quash or modify a subpoena that either (1) fails
to allow a reasonable time to comply, (2) requires a person to
comply beyond the geographical limits specified in FED. R. CIV.
P. 45(c), (3) requires disclosure of privileged or other protected
matter, if no exception or waiver applies, or (4) subjects a person
to undue burden.

FED. R. CIV. P. 45(d)(3)(A).

A court also may

quash or modify a subpoena that seeks commercial research or
information, or materials from an unretained expert witness.

FED.

R. CIV. P. 45(d)(3)(B). The party seeking to quash bears the burden
of demonstrating that the subpoena at issue falls within the Rule
45 criteria.

Malibu Media, LLC v. John Does 1-6, No. 12 C 08903,

2013 U.S. Dist. LEXIS 71857, at *14 (N.D. Ill. May 17, 2013).
III.

ANALYSIS

Doe 39 seeks to quash the Comcast subpoena on two grounds:
first, that Doe 39 is misjoined, and second, that the subpoena
violates the Electronic Communications Privacy Act, 18 U.S.C.
§§ 2510 et seq. (“ECPA”), as modified by the Stored Communications
Act, 18 U.S.C. §§ 2701 et seq. (“SCA”).

- 3 -

A.

Joinder

1. Quashing the Subpoena is an
Improper Remedy for Misjoinder
At the outset, the Court notes that it is questionable whether
Doe 39 has standing to object to the subpoena Site B served on
Comcast.

“Ordinarily, a party has no standing to seek to quash a

subpoena issued to someone who is not a party to the action unless
the party claims some personal right or privilege with regard to
the documents sought.”

Kessel v. Cook Cnty., No. 00 C 3980, 2002

U.S. Dist. LEXIS 4185, at *5 (N.D. Ill. Mar. 14, 2002) (quotations
omitted).

District courts in this Circuit have disagreed over

whether an anonymous defendant accused of copyright infringement
has standing to object to a subpoena issued to his ISP.

See,

Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 U.S. Dist. LEXIS
31228, at *14-15 (N.D. Ill. May 7, 2013) (comparing cases).
Even assuming Doe 39 has standing to challenge the Comcast
subpoena, however, his Motion still must be denied because quashing
a subpoena is not a means of remedying improper joinder.

Rather,

the appropriate relief in such circumstances would be severance
pursuant to Rule 21 of the Federal Rules of Civil Procedure.

See,

reFX Audio Software, Inc. v. Does 1-111, No. 13 C 1795, 2013 U.S.
Dist. LEXIS, at *9 n.2 (N.D. Ill. July 23, 2013) (“Even if joinder
of all defendants is not proper, improper joinder is not grounds to
quash the third party subpoenas under Fed. R. Civ. P. 45.”).

- 4 -

Doe 39’s contention that he was improperly joined therefore cannot
serve as a basis for the relief he seeks.
2.

Joinder is Proper

Although Doe 39 does not request severance in its Motion to
Quash, the Court may, on its own, sever parties or claims that it
determines were improperly joined.

See, FED. R. CIV. P. 21.

Rule 20 of the Federal Rules of Civil Procedure provides that
persons may be joined as defendants in a single action if “(A) any
right to relief is asserted against them jointly, severally, or in
the

alternative

with

respect

to

or

arising

out

of

the

same

transaction, occurrence, or series of transactions or occurrences;
and (B) any question of law or fact common to all defendants will
arise in the action.”

FED. R. CIV. P. 20(a)(2).

Joinder of claims

is favored strongly. United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 724 (1966). Permissive joinder pursuant to Rule 20(a)(2) does
not require the defendants to have acted in concert with each other
–

only

that

they have

participated

in

the

same

occurrence, or series of transactions or occurrences.
States v. Mississippi, 380 U.S. 128, 143 (1965).

transaction,
See, United

In other words,

joinder is proper “when there is a logical relationship between the
separate causes of action.”

Malibu Media LLC v. John Does 1-6,

2013 U.S. Dist. LEXIS 71857, at *33 (N.D. Ill. May 17, 2013)
(quotations omitted). This test is satisfied when “the defendants’
allegedly infringing acts, which give rise to the individual claims
- 5 -

of infringements . . . share an aggregate of operative facts.”

Id.

at *34.
Doe 39 argues that the Complaint is insufficient because
Site B did not allege that (1) the various “P2PClients” (which Doe
39 mistakenly refers to as “P2P Protocols”) listed in Exhibit B to
the Complaint are in fact “BitTorrent protocols”; (2) different
P2PClients can participate in the same swarm; or (3) Defendants
with different ISPs can participate in the same swarm.

(Def.’s

Mem. in Supp. of Mot. to Quash (“Def.’s Mem.”) at 3, ECF No. 13).
None of these claims has merit.
Site

B

alleges

that

BitTorrent

protocol

facilitates

transfer of files across P2P networks. Compl. ¶ 3.

the

The P2PClients

listed in Exhibit B are the P2P networks utilizing the BitTorrent
protocol that Site B refers to in the third paragraph of its
Complaint.

(See, Pl.’s Resp. to Mot. to Quash (“Pl.’s Opp. Mem.”)

at 2, ECF No. 18). Furthermore, Exhibit B shows that persons using
different ISPs and P2P Clients can participate in the same swarm.
See, Compl. ¶¶ 3-4 & Ex. B.

All of the Defendants listed in

Exhibit B downloaded identical files using BitTorrent protocol.
See, id. Ex. B.

Therefore, Site B has alleged properly that the

Defendants participated in the same swarm.
Doe 39 also argues that Site B failed to establish that the
Defendants participated in the same transaction, occurrence, or
series of transactions or occurrences because the alleged downloads

- 6 -

occurred at various times over a six-week period.

District courts

across the country, including those within this District, are split
on whether it is permissible to join many anonymous defendants
alleged to have participated in a single downloading “swarm” in the
same lawsuit.

In that regard, courts are in disagreement over

whether a plaintiff can join defendants it alleges participated in
the same swarm without establishing that the defendants accessed
the swarm contemporaneously.

Compare, Reynolds, 2013 U.S. Dist.

LEXIS 31228, at *26-36 (Kendall, J.) (collecting cases and finding
joinder improper because plaintiff did not allege that anonymous
defendants accessed the swarm at the same time), and Malibu Media,
LLC v. John Does 1–21, No. 12 C 9656, 2013 LEXIS 79433, at *13-19
(N.D. Ill. June 6, 2013) (Reinhard, J.) (same), with Malibu Media,
LLC v. John Does 1-6, No. 12 C 8903, 2013 U.S. Dist. LEXIS 71857,
at *40-43 (N.D. Ill. May 17, 2013) (Castillo, J.) (“Those courts
that require plaintiffs to establish that defendants were in the
swarm at the same time or in close temporal proximity so as to join
them in a single suit ignore that permissive joinder under Rule
20(a) does not . . . ‘have as a precondition that there be temporal
distance or temporal overlap.’”), and Zambezia Film Pty, Ltd. v.
Does 1-65, No. 13 C 1321, 2013 U.S. Dist. LEXIS 123414, at *12-13
(N.D. Ill. Aug. 29, 2013) (St. Eve, J.) (“Looking to the plain
language of Rule 20 and its origins . . . defendants need not be in

- 7 -

the same swarm at the same time to be properly joined.”).

The

Seventh Circuit has yet to resolve the question.
In Pacific Century Int'l v. Does 1–31, No. 11 C 9064, 2012
U.S. Dist. LEXIS 82796, at *5 (N.D. Ill. June 12, 2012), this Court
held that “allegations that . . . anonymous defendants participated
in the same ‘swarm’ (at varying times spanning just over one month)
sufficiently alleges that they were involved in ‘a series of
transactions’ to warrant joinder under Rule 20.”

Doe 39 presents

no argument that persuades the Court to adopt a different position
here.

Indeed, nothing in Rule 20(a)’s language requires that

parties interact directly with each and every other party to the
suit.

The phrase “series of transactions or occurrences” is broad

enough to encompass transactions occurring at different times and
involving

different

parties.

Furthermore,

transfers in a swarm are interdependent.
pieces

of

the

same

file,

regardless

all

of

the

file

Each transfer involves

of

whether

downloaded the file previously left the swarm.

a

party

who

See, Osiris Entm't

LLC v. Does 1-38, No. 13 C 4901, 2013 U.S. Dist. LEXIS 117418, at
*8-11 (N.D. Ill. Aug. 20, 2013) (“the pieces of the file that Doe
1

distributed

directly

to

other

Does

who

were

in

the

swarm

contemporaneously with Doe 1 were in turn subsequently distributed
by them to the Does who joined the swarm after Doe 1 left it; in
the context of a swarm, there is only a single digital file that is
distributed among the members.

Thus, it cannot be said that

- 8 -

subsequent transfers of that file are entirely ‘independent’ of the
earlier transfers.”).
Site

B’s

allegations

also

are

sufficient

to

satisfy

Rule 20(a)(2)’s requirement that all defendants share a common
question of fact or law.

FED. R. CIV. P. 20(a)(2)(B).

Among the

shared questions of fact in this case are whether the Defendants
copied Site B’s film using BitTorrent protocol and whether they
distributed the film using BitTorrent protocol.

“[T]he factual

inquiry into the method used in any alleged copyright infringement
will be substantially identical, as the methods [Site B] will use
to investigate, uncover, and collect evidence about any infringing
activity will be the same as to each Doe Defendant.”

First Time

Videos, LLC v. Does 1–500, 276 F.R.D. 241, 252 (N.D. Ill. 2011).
Similarly, the Defendants share common questions of law, including
whether

copying

BitTorrent

swarm

and

distributing

constitutes

“Under

direct

or

the

Bed”

contributory

through

a

copyright

infringement or both.
Therefore, Site B has – at least at this stage – made an
adequate showing that the Defendants are joined properly.

The

Court remains open to revisiting its decision in the future,
however, should the putative defendants seek to raise the issue
again after they become named defendants in this case.

See, e.g.,

Mgcip v. Doe, No. 10 C 6677, 2011 U.S. Dist. LEXIS 61879, at *5-6
(N.D. Ill. June 9, 2011).

- 9 -

B.

ECPA

Doe 39 also argues that the Comcast subpoena should be quashed
because it runs afoul of the ECPA’s restrictions on the disclosure
of electronic communications.
prohibits

electronic

While it is true that the ECPA

communication

services

from

“knowing[ly]

divulg[ing] to any person or entity the contents of a communication
while in storage by that service,” 18 U.S.C. § 2702(a)(1) (emphasis
added), the subpoenas in this case seek only identifying account
information for the Defendants. The ECPA permits the disclosure of
customer records to “any person other than a governmental entity.”
18 U.S.C. § 2702(c)(6).

Since Site B is a private entity, the ECPA

disclosure limitations upon which Doe 39 relies do not apply to the
subpoena in this case.

See, TCYK, LLC v. Does 1-87, No. 13 C 3845,

2013 WL 5567772, at *3 (N.D. Ill. Oct. 9, 2013).
Doe 39 also argues that the Comcast subpoena should be quashed
because Site B failed to inform Comcast that disclosure of customer
records under the ECPA is voluntary.

Doe 39 cites no authority

that suggests that this is a requirement under the ECPA, however,
and the Court is aware of at least two cases that have declined to
quash subpoenas despite their apparent failure to indicate that
disclosure was not compulsory.

See, e.g., First Time Videos, 276

F.R.D. at 247; Mintz v. Mark Bartelstein & Assocs., 885 F.Supp.2d
987, 993 (C.D. Cal. 2012).
corporation

in

the

Moreover, Comcast is the largest media

world.

See,
- 10 -

Media

Data

Base:

Comcast/

NBCUniversal, LLC, Institute of Media and Communications Policy,
www.

mediadb.

eu/en/data-base/international-media-corporations/

comcastnbcuniversal-llc.html (last accessed Feb. 20, 2014).

It is

frivolous to suggest that it would need to rely on Site B for
advice concerning its legal obligations in this case.
In these circumstances, the Court finds no basis for quashing
the subpoena.
IV.

CONCLUSION

For the reasons stated herein, Doe 39’s Motion to Quash
[ECF No. 13] is denied.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date:3/7/2014

- 11 -