FIRST TIME VIDEOS, LLC v. DOES 1-18

Filing 28

ORDER ON DEFENDANT'S MOTION TO QUASH SUBPOENA - 16 Motion to Quash Subpoena is DENIED. See Order for details. Signed by Magistrate Judge William G. Hussmann, Jr on 8/25/2011. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
FIRST TIME VIDEOS, LLC,
Plaintiff,
v.
DOES 1-18,
Defendants.

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4:11-cv-69-SEB-WGH

ORDER ON DEFENDANT’S MOTION TO QUASH SUBPOENA
This matter is before the Honorable William G. Hussmann, Jr., United States
Magistrate Judge, on Defendant Doe 1’s (alleged user of I.P. address
71.239.183.242) Motion to Quash Subpoena filed August 1, 2011. (Docket No. 16).
Plaintiff filed a Response on August 4, 2011. (Docket No. 21). No reply has been
filed.
Having reviewed the arguments of the parties and the relevant legal
authorities, the Magistrate Judge concludes that Defendant Doe 1’s Motion to
Quash Subpoena should be denied.
Plaintiff filed this suit alleging that individuals using IP addresses associated
with Defendants Does 1-18 were the unauthorized downloaders of Plaintiff’s video
in violation of the Copyright Act. In an attempt to discern Defendants’ identities,
Plaintiff issued a Subpoena to Comcast Cable Holdings LLC (“Comcast”) which is

the Internet Service Provider for at least Defendant Doe 1. The Subpoena to
Comcast requested the following information:
[P]rovide the name, current (and permanent) addresses, telephone
numbers, e-mail addresses and Media Access Control addresses of all
persons whose IP addresses are listed in the attached spreadsheet.
(Joint Submission Statement at Ex. A).
Defendant Doe 1 filed the instant Motion to Quash arguing that disclosure
of the information sought in the Subpoena would violate the Electronic
Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2701-2703, because the ECPA
protects the disclosure by an Internet Service Provider of the content of electronic
communications. Furthermore, Defendant Doe 1 argues that the Subpoena should
be quashed because the ECPA allows the disclosure of customer information or
records to a governmental entity only in certain circumstances which Defendant
Doe 1 alleges are not present in this case.
Rule 45 of the Federal Rules of Civil Procedure governs the issuance of
subpoenas and provides that the court “must” quash a subpoena that requires
disclosure of a privileged or other protected matter or is unduly burdensome.
FED. R. CIV. P. 45(c)(3)(iii) & (iv).
Defendant Doe 1 is correct that the ECPA governs the voluntary disclosure
by an Internet Service Provider of customer communications or records. 18 U.S.C.
§ 2702. However, in this case, the Subpoena at issue clearly only seeks the
disclosure of customer records, not the actual content of any communications.
Therefore, the only relevant portions of the ECPA for the purposes of our analysis

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are those portions which concern the disclosure of customer records and are as
follows:
(a) Prohibitions.—Except as provided in subsection (b) or (c)—
....
(3) a provider of remote computing service or electronic
communication service to the public shall not knowingly
divulge a record or other information pertaining to a
subscriber to or customer of such service (not including
the contents of communications covered by paragraph (1)
or (2)) to any governmental entity.
....
(c) Exceptions for disclosure of customer records.–A provider
described in subsection (a) may divulge a record or other information
pertaining to a subscriber to or customer of such service (not including
the contents of communications covered by subsection (a)(1) or
(a)(2))—
....
(6) to any person other than a governmental entity.
18 U.S.C. § 2702. Plaintiff is not a governmental entity. Consequently, disclosure
by Comcast to Plaintiff of Defendant Doe 1’s name, address, telephone number, email addresses, and Media Access Control address would not violate the ECPA.
See In re U.S., 441 F.Supp.2d 816, 834 (S.D. Tex. 2006)(explaining that “the sixth
exception (authorizing disclosure ‘to any person other than a governmental entity’)
underscores that the primary intent of the prohibition was to guard against
unwarranted access to subscriber information by the government.”)(emphasis in
original).
Because the ECPA does not prohibit the disclosure of customer information
to parties such as Plaintiff, Defendant Doe 1’s Motion to Quash Subpoena is
DENIED.

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You are hereby notified that the District Judge may reconsider any pretrial
matter assigned to a United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(A) where it is shown that the order is clearly erroneous or contrary to law.
SO ORDERED.
Dated: August 25, 2011
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
Raphael J. Whitford
STEELE HANSELMEIER PLLC
[e-mail]
Andrew R. Wolf
The Wolf Law Office
[e-mail]

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