FIRST TIME VIDEOS, LLC v. DOES 1-18

Filing 33

ORDER ON DEFENDANT DOE NO. 2'S MOTION TO QUASH SUBPOENA - 25 Motion to Quash Subpoena is DENIED. Plaintiff's attorneys are admonished to carefully consider the Rules of Professional Responsibility and Rule 11 of the Federal Rules of Civil Procedure before determining what use to make of the information garnered from the Subpoena. See Order for details. Signed by Magistrate Judge William G. Hussmann, Jr on 9/13/2011. (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 DOE NO. 2’S MOTION TO QUASH SUBPOENA
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, on Defendant Doe No. 2’s (alleged user of I.P. address
96.28.166.145) Motion to Quash Subpoena filed August 18, 2011. (Docket No.
25). Plaintiff filed a Response on August 28, 2011. (Docket No. 29). No reply
has been filed.
Having reviewed the arguments of the parties and the relevant legal
authorities, the Magistrate Judge concludes that Defendant Doe No. 2’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 Insight Communications
Midwest, LLC (“Insight”), which is the Internet Service Provider for at least

Defendant Doe No. 2. The Subpoena to Insight 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.
(Motion to Quash Subpoena at Ex. A).
Defendant Doe No. 2 filed the instant Motion to Quash Subpoena arguing
that compliance with the Subpoena requires disclosure of protected identity
information and would also amount to an undue burden. Defendant Doe No. 2
also alleges that she is a woman who “denies any association with the
downloading of pornographic material.” Defendant Doe No. 2’s arguments in
support of her Motion to Quash Subpoena are unavailing.
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).
1. Does the Subpoena Seek Protected Information?
Defendant Doe No. 2’s first argument is that the Subpoena should be
quashed because it seeks the disclosure of her protected identity information.
Essentially, Defendant is asserting that the Subpoena should be quashed
pursuant to Rule 45(c)(3) because it “requires disclosure of privileged or other
protected matter.” However, there is no expectation of privacy in Internet

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subscriber information because it has already been exposed to a third party, the
Internet Service Provider. Courtright v. Madigan, 2009 WL 3713654 at *2 (S.D.
Ill. November 4, 2009). Additionally, an individual has no protected privacy
interest in their name, address, phone number, e-mail address, or Media Access
Control address when there is an allegation of copyright infringement. Interscope
Records v. Does 1-12, 2008 WL 4939105 at *2 (N.D. Ind. November 14, 2008).
Hence, Defendant Doe No. 2’s Motion to Quash Subpoena must be denied.
2. The Subpoena is Not Unduly Burdensome
Defendant next argues that having to comply with the Subpoena amounts
to an undue burden. Courts that have addressed this issue have concluded that
the issuance of a subpoena to the Internet Service Provider of putative
defendants does not create an undue burden on the putative defendants
because they are not required to produce anything. First Time Videos, LLC v.
Does 1-500, --- F.Supp.2d ----, 2011 WL 3498227 at *7 (N.D. Ill. August 9,
2011); see also MGCIP v. Does 1-316, 2011 WL 2292958 at *1 (N.D. Ill. June 9,
2011). The court in First Time Videos explained that “if anyone may move to
quash these subpoenas on the basis of an undue burden, it is the ISPs
themselves, as they are compelled to produce information under the subpoena.”
First Time Videos, LLC, 2011 WL 3498227 at *7. Defendant Doe No. 2, therefore,
cannot claim an undue burden when it is Insight who must respond to the
Subpoena.

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3. Defendant’s Denial of Involvement
Finally, Defendant asserts that she has not downloaded any pornographic
material, that she lives with another individual, and that several family members
and friends have spare keys to her home. However, numerous courts in this
circuit have concluded that “[a] general denial of liability is not relevant as to the
validity or enforceability of a subpoena, but rather should be presented and
contested once parties are brought properly into the suit.” First Time Videos,
LLC, 2011 WL 3498227 at *8; see also MGCIP, 2011 WL 2292958 at *1.
Consequently, Defendant Doe No. 2’s general denial of liability cannot be a basis
for quashing the Subpoena.
Conclusion
For the reasons outlined above, Defendant Doe No. 2’s Motion to Quash
Subpoena is DENIED.
The Magistrate Judge notes Doe No. 2’s concerns that the disclosure of her
identity can lead to unwarranted embarrassing public disclosures, extortion-like
attempts to force settlements, or lawsuits brought against defendants who have
no liability. Those concerns are not far-fetched. However, the Rules of
Professional Responsibility and Rule 11 of the Federal Rules of Civil Procedure
stand as barriers to such conduct. Plaintiff’s attorneys are admonished to
carefully consider these rules before determining what use to make of the
information garnered from the Subpoena.

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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: September 13, 2011

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
Gordon D. Ingle
FAITH INGLE SMITH LLC
[e-mail]
Brandon W. Smith
FAITH INGLE SMITH LLC
[e-mail]
Raphael J. Whitford
STEELE HANSELMEIER PLLC
[e-mail]
Andrew R. Wolf
The Wolf Law Office
[e-mail]

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