MALIBU MEDIA, LLC. v. JOHN DOES 1-18
Filing
28
OPINION. Signed by Magistrate Judge Madeline C. Arleo on 12/18/2013. (nr, )
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MALIBU MEDIA, LLC,
Plaintiff
Civil Action No. 12-07789 (KM)(MCA)
OPINION
v.
JOHN DOES 1-18,
Defendants.
ARLEO, United States Magistrate Judge:
This is an action for copyright infringement. Currently before the Court are the following
motions:
•
•
Defendant John Doe 9's ("John Doe 9"i motion to sever and dismiss for improper
joinder pursuant Rule 20, and motion to quash Plaintiff's subpoena pursuant to Rule
45 issued and served upon Comcast on February 22, 2013. (Dkt. No. 10). On April
22, 2013, Plaintiff filed an opposition memorandum. (Dkt. No. 18). On April 29,
2013, John Doe 4 filed a reply brief. (Dkt. No. 22).
•
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Defendant John Doe 4's ("John Doe 4") 1 motion to sever and dismiss for improper
joinder pursuant to Federal Rule of Civil Procedure 20 ("Rule 20"), and motion to
quash Plaintiff Malibu Media, LLC's ("Malibu" or "Plaintiff') subpoena pursuant to
Federal Rule of Civil Procedure 45 ("Rule 45") issued and served upon Comcast
Cable Holdings, LLC ("Comcast") on February 22, 2013. (Dkt. No.9). On April 22,
2013, Plaintiff filed an opposition memorandum. (Dkt. No. 17). On April 29, 2013,
John Doe 4 filed a reply brief. (Dkt. No. 21 ).
Defendant John Doe 14's ("John Doe 14")3 motion to quash or vacate Plaintiff's
subpoena pursuant to Rule 45 issued and served upon Comcast on February 22, 2013.
John Doe 4 is alleged as having IP address 68.39.197.213.
John Doe 9 is alleged as having IP address 69.248.146.244.
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John Doe 9 is alleged as having IP address 76.117.150.59.
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(Dkt. No. 12). On April 22, 2013, Plaintiff filed an opposition memorandum. (Dkt.
No. 19).
Given the similarity of John Doe 4 and 9's motions to sever and to quash the subpoenas and their
underlying arguments, 4 the Court will address the motions jointly in this opinion.
For the
reasons set forth below, the Court GRANTS the motions of John Does 4 and 9 to sever and
dismiss the action against them without prejudice.
Additionally, the Court GRANTS the
motions of John Does 4 and 9 to quash the subpoenas issued to Comcast without prejudice, and
the Court sua sponte quashes the subpoenas issued to Comcast for John Does 1, 2, 3, 5, 6, 7, 8,
10, 11, 12, 13, 15, 16, 17, and 18, since they are no longer parties to this action. (Dkt. Nos. 24,
26). 5 Finally, the Court DENIES the motion of John Doe 14 to quash the subpoenas issued to
Com cast.
I.
FACTUAL BACKGROUND
This action is one of many similar internet copyright infringement actions in this District
and across the country. Plaintiff Malibu Media filed a Complaint on December 19, 2012 (Dkt.
No. 1), and an Amended Complaint on February 21, 2013 (Dkt. No. 8), against eighteen (18)
John Doe Defendants alleging copyright infringement in violation of 17 U.S.C. §§ 106 and 501
and contributory copyright infringement. The Complaint alleges that Malibu Media is a limited
liability company organized and existing under the laws of the State of California with its
principal place of business in California. (I d. at ~ 6). Plaintiff alleges that it owns certain United
States Copyright Registrations, which cover different motion pictures (collectively the "Works").
(ld. at
~
11, Ex. B). Defendants are unnamed individuals accused of downloading Plaintiffs
4
These motions are virtually identical except for the names of the respective defendants.
Plaintiff has previously voluntarily dismissed its complaint against Defendant John Does 1, 2,
3, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, and 18. (Dkt. Nos. 24, 26).
5
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Works at different times on different dates. (Id. at Ex. B). These defendants are identifiable to
Plaintiff only by their Internet Protocol ("IP") addresses and not by name or address. (Id.
at~
7).
Plaintiff alleges that each Defendant installed BitTorrent, a common peer-to-peer file
sharing protocol, on his or her computer, and went to a torrent site to upload and download
Plaintiffs copyrighted Works. (Id. at
~~
12-26). Plaintiff further alleges that Defendants joined
a "swarm" where they trade with multiple peers so that they are each able to ultimately download
full files and view a Work or Works. (Id.
at~~
27-33). Plaintiff retained IPP, Limited ("IPP"), a
computer investigator, "to identify the IP addresses that are being used by those people that are
using the BitTorrent protocol and the internet to reproduce, distribute, display or perform
Plaintiffs' copyrighted Works." (Id.
at~
34).
Because the John Doe Defendants' identities are unknown to Plaintiff other than by their
IP addresses, on January 11, 2013, Plaintiff moved for Leave to Serve Third Party Subpoena
prior to a Rule 26(f) conference. (Dkt. Nos. 4, 4.1). On February 14, 2013, this Court granted
Plaintiffs motion. (Dkt. No.7). Subsequently, on February 22, 2013, Plaintiff served Comcast,
which is Defendants' internet service provider ("ISP"), with a subpoena seeking names,
addresses, and telephone numbers of eighteen (18) individuals or entities designated as John
Does 1-18. (Dkt. No. 9-2). Following Plaintiffs service of subpoena on Comcast, John Doe
Defendants 4, 9, and 14 filed separate motions challenging the Rule 45 subpoenas issued to
Comcast, with John Doe 4 and 9 also seeking severance and dismissal for improper joinder.
(Dkt. Nos. 9, 10, 12).
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DISCUSSION
a. Motions to Sever and Dismiss
Since Defendants John Does 4 and 9 seek severance and dismissal for improper joinder,
the legal standard for joinder is addressed herein. Federal Rule of Civil Procedure 20(a)(2)
("Rule 20") sets forth two necessary conditions that must be satisfied for a plaintiff to
permissively join multiple defendants in one action: first, the claims asserted against the
defendants must "aris[e] out of the same transaction, occurrence, or series of transactions or
occurrences," and second, there must be a "question of law or fact common to all defendants."
FED. R. CIV. P. 20(a)(2)(A)-(B).
Where a plaintiff has failed to satisfy the conditions of
permissive joinder under Rule 20(a), a court may "grant severance or dismissal to the improper
party if it will not prejudice any substantial right" to remedy improper joinder pursuant to
Federal Rule of Civil Procedure 21 ("Rule 21 "). Sabolsky v. Budzanoski, 457 F.2d 1245, 1249
(3d. Cir. 1972). Rule 21 provides: "[ o]n motion or on its own, the court may at any time, on just
terms, add or drop a party." FED. R. CIV. P. 21.
Moreover, even where joinder is permissible under Rule 20, a Court may exercise its
discretion to sever or drop defendants if it concludes that doing so would further the interests of
judicial economy without prejudice to any party. FED. R. Crv. P. 20(b ), 21, and 42(b ); see also
Patrick Collins, Inc. v. John Does 1-43, No. 12-cv-3908, at *3 (D.N.J. Feb. 15, 2013) (Hayden,
J.) (citing Rodin Props.-Shore Mall, N.V. v. Cushman & Wakefield of Penn., Inc., 49 F. Supp. 2d
709, 721 (D.N.J. 1999) (Brotman, J.) ("The decision to sever a claim or to try it separately is left
to the sound discretion of the trial court.")).
Here, there are eighteen (18) John Doe Defendants. As previously noted, fifteen (15) of
these Defendants have been voluntarily dismissed. (Dkt. Nos. 24, 26). John Doe Defendants 4,
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9, and 14 remain. John Doe Defendants 4 and 9 have filed motions to sever and dismiss. (Dkt.
Nos. 9, 10).
John Doe 4 and 9 argue, inter alia, that they are improperly joined as a defendant,
citing various authorities in support, because the instances of accessing Plaintiffs Works did not
arise from a single transaction or occurrence required by Rule 20, but rather happened on entirely
different dates and times. (Dkt. No. 9-5, at 2, 11-18; Dkt. No. 10-4, at 2, 11-18). Plaintiff, in
opposition, argues, inter alia, that joinder is proper because: (1) the infringement occurred
through a series of transactions; (2) there are common issues of fact and law; (3) defendants are
jointly and severally liable; and (4) joinder promotes judicial efficiency and is beneficial to
defendants. (Dkt. No. 17, at 17-22; Dkt. No. 18, at 17-22).
As the litigants are certainly well aware, over the last year, the voluminous amount of
internet infringement actions involving peer-to-peer file sharing has led to some inconsistent
holdings. There is a split among federal courts and even within some districts as to "whether
defendants who participated in the same swarm . . . and downloaded the same file satisfy the
transaction-or-occurrence standard and can be properly joined." Compare Next Phase Distrib.,
Inc. v. John Does 1-27,284 F.R.D. 165, 168 (S.D.N.Y. 2012) (holding joinder oftwenty-seven
(27) defendants improper and sua sponte severing John Does 2-27); Amselfilm Prod. GMBH &
Co. KG v. Swarm 6A6DC and John Does 1-187, No. 12-cv-3865, 2012 U.S. Dist. LEXIS
186476 (D.N.J. Oct. 10, 2012) (Hochberg, J.) (holding joinder of 187 defendants improper);
Media Products, Inc. v. John Does 1-26, No. 12 Civ. 3719, 2012 WL 3866492, at *2 (S.D.N.Y.
Sept. 4, 2012) (holding joinder of twenty-six (26) defendants in copyright infringement is
improper); Third Degree Films, Inc. v. Does 1-131, 280 F.R.D. 493, 497-99 (D. Ariz. 2012)
(holding joinder of 131 defendants in copyright infringement action is improper); West Coast
Prods., Inc. v. Swarm Sharing Hash Files, et al., No. 6:12-cv-1713, 2012 WL 3560809, at *7-8
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(W.D. La. Aug.l7, 2012) (finding joinder of 1,980 defendants improper and granting motion to
sever); with Patrick Collins, Inc. v. John Does 1-21, 282 F.R.D. 161, 167 (E.D. Mich. 2012),
report and recommendation adopted, No. 11-15232, 2012 WL 4498373 (E.D. Mich. Sept. 28,
2012) (finding joinder of twenty-one (21) defendants was proper because "[d]efendants
networked with ... each other and/or with other peers through a series of transactions in the
same swarm to infringe on Plaintiffs copyright"); Malibu Media, LLC v. John Does 1-5, No.
12-cv-2954, 285 F.R.D. 273 (S.D.N.Y. 2012) (holding joinder of five (5) defendants in copyright
infringement action is proper); Malibu Media, LLC v. John Does# 1-30, No. 12-3896, 2012 WL
6203697, at *7-8 (D.N.J. Dec. 12, 2012) (Arpert, J.) (finding joinder appropriate and denying
motions to sever). 6
Despite the split, recent authority in this District has found joinder in this context
inappropriate, and judges have either ordered or recommended severance and dismissal of all
claims against all defendants other than one defendant, usually John Doe # 1. See, e.g., Patrick
Collins, Inc., No. 12-cv-3908, at *5-6 (sua sponte severing all John Doe defendants except for
one); Amselfilm Prod., No. 12-cv-3865, at n.3 (finding joinder improper and severing and
dismissing all John Doe defendants except John Doe 1); see also Third Degree Films, Inc. v.
John Does 1-110, No. 12-cv-5817, at *2 (D.N.J. Jan. 17, 2013) (Falk, J.) (denying motion to
quash "in contemplation of severance and dismissal" for improper joinder of 110 John Doe
defendants); Century Media, Ltd. v. John Does 1-77, No. 12-cv-3911 (D.N.J. Feb. 27, 2013)
6
On March 28, 2013, in Malibu Media v. John Does 1-39, No. 12-06945 (D.N.J. Mar. 28, 2013)
(Arpert, J.), Judge Arpert reflected on his earlier decision in Malibu Media, LLC v. John Does#
1-30, 2012 WL 6203697, and found the reasoning in Amselfilm Prod. GMBH & Co. KG v.
Swarm 6A6DC and John Does 1-187, No. 12-cv-3865 (D.N.J. Oct. 10, 2012) (Hochberg, J.),
Third Degree Films, Inc. v. John Does 1-110, No. 12-cv-5817, at *2 (D.N.J. Jan. 17, 2013)
(Falk, J.), and Patrick Collins, Inc. v. John Does 1-43, No. 12-cv-3903, at *3 (D.N.J. Feb. 15,
2013) (Hayden, J.) to be more persuasive, and severed and dismissed the claims against all
defendants except John Doe 1.
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(Dickson, J.) (ordering plaintiff to show cause as to why the Court should not recommend sua
sponte dismissal of all John Doe defendants except for one); Malibu Media v. John Does 1-39,
No. 12-06945 (D.N.J. Mar. 28, 2013) (Arpert, J.) (severing and dismissing all John Doe
Defendants except for one); Malibu Media, LLC v. John Does 1-22, No. 12-cv-5091, 2013 WL
1704291 (D.N.J. Apr. 19, 2013) (Chesler, J.) (finding joinder improper and severing and
dismissing four (4) John Doe defendants, and sua sponte severing the remaining defendants
except John Doe 1); Malibu Media, LLC v. Surgent, No. 12-cv-3905, 2013 WL 1704289 (D.N.J.
Apr. 19, 2013) (Chesler, J.) (finding joinder improper and severing and dismissing two (2) John
Doe defendants, and sua sponte severing the remaining defendants except John Doe 1).
In
Amselfilm, in severing and dismissing all John Doe defendants except for one, Judge Hochberg
found joinder of the defendants to be improper "where Defendants' only determinable
connection to one another is the similar method of distributing the same work, and where
Defendants' alleged instances of distribution constitute separate transactions." Amselfilm Prod.,
No. 12--cv-3865, at n.3. Judge Hochberg went on to note that:
While this Court appreciates that those who participate in the same
swarm are virtually "connected" by the same copyrighted work,
this Court is not convinced that the purported instances of
distribution, as identified by digital rights enforcement company
Baseprotect and listed in Schedule B of the complaint, are a part of
the same transaction, particularly because they span across various
dates and times. Although there may be multiple individuals who
distribute pieces of the same work and are thereby described as
being in the same swarm, it is probable that different people within
the swarm never distribute a piece of the work to the same person,
or at the same moment in time. Third Degree Films, 280 F.R.D. at
498 (finding that participation in the same swarm does not
constitute the same transaction or occurrence or series of
transactions or occurrences for purposes of joinder because a
particular swarm "can last for many months" and "[ d]uring those
months, the initial participants may never overlap with later
participants"); see also June 18, 2012 Declaration of David Farris ~
25. Without more connecting them, 187 defendants who have
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distributed pieces of the work at different times cannot be
permissively joined in this case. For joinder to be appropriate,
Plaintiff must show a more definite connection between
participants in the swarm, namely that the group of defendants
sought to be joined have directly participated in the same
transaction. For example, the Plaintiff might be able to establish
joinder by showing that on a certain date and time, a particular
subset of the swarm distributed pieces of the work to a common
downloader.
ld., at n.3; see also Century Media, Ltd., 2013 WL 686230, at *2-3. Thus, for permissive joinder
to be appropriate and to not strain judicial resources, "there must be a connection between the
defendants beyond the copyrighted work and method of distribution, namely that defendants
were involved in the same transaction with the same downloader at the same time." Amselfilm
Prod., No. 12-cv-3865, at 3.
The facts of the instant case are analogous to the Amselfilm case where the alleged
instances of infringement (or copying) occurred on different dates and times as different
transactions. (See Dkt. 8, Ex. A & B). Further, like in Amselfilm, other courts have held that
there are too few facts connecting each of the John Doe defendants; that each defendant would
likely assert different factual defenses to the allegations creating factual and legal issues not
common to all defendants which would require separate adjudication of these issues; and that
many of the owners of the IP addresses did not download the Works and thus are not the alleged
infringers. See, e.g., Patrick Collins, Inc., No. 12-cv-3908; SBO Pictures, Inc. v. Does 1-20,
No. 12 Civ. 3925, 2012 WL 2304253, at *2 (S.D.N.Y. June 18, 2012); Third Degree Films v.
Does 1-72, No. 12-10760-FDS, 2012 WL 5464177, at *5 (D. Mass. Nov. 5, 2012); Media
Prods., Inc. v. John Does 1-26, Nos. 12 Civ. 3719, 12 Civ. 3630, 12 Civ. 2962, 2012 WL
3866492, at *2 (S.D.N.Y. Sept. 4, 2012). Accordingly, other courts have severed and dropped
all John Doe defendants except for one because joinder of the John Doe defendants would not
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promote judicial economy and fairness. See Patrick Collins, Inc., No. 12-cv-3908; Amselfilm
Prod., No. 12-cv-3865, n.3.
This Court fully agrees with the decisions of its colleagues in this District that have found
joinder inappropriate. Therefore, in the interests of judicial economy, the Court, in its discretion,
grants the motions of John Does 4 and 9 to sever and dismiss the action against them without
prejudice to allow Plaintiffs to re-file its claims against the John Doe Defendants in separate
actions. Additionally, since they are no longer parties to this action, the Court grants the motions
of John Does 4 and 9's Motions to quash the subpoenas issued to Comcast without prejudice,
and sua sponte quashes the subpoenas issued to Comcast for John Does 1, 2, 3, 5, 6, 7, 8, 10, 11,
12, 13, 15, 16, 17, and 18. (Dkt. Nos. 24, 26).
b. Motions to Quash
Defendant John Doe 14 filed a motion to quash or vacate the subpoena issued to Comcast
by Plaintiff. (Dkt. 12). John Doe 14 contends that he has standing to bring the instant motion
because the subpoena requires disclosure of protected information in that it "seeks disclosure of
personal identification information considered to be confidential and over which DOE No. 14
has personal and proprietary interests." (Id. at 4-5). John Doe 14 also claims he has standing to
protect his reputational interest. (ld. at 5). He also argues that the subpoena subjects him to an
undue burden because the information is not relevant and presents a risk of reputational injury.
(Id. at 4, 6-8).
Plaintiff, on the other hand, argues that Defendant lacks standing to contest a third-party
subpoena on the basis of undue burden. (Dkt. No. 19, at 5). Plaintiff contends that Defendant
cannot contest the subpoenas by claiming an undue burden because the burden of producing the
information is on the internet service provider and not the Defendant. (ld. at 6).
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Plaintiff argues that a concern about reputational injury is not a reason to quash the subpoena.
(Id. at 7). Plaintiff does not object to allowing Defendant's information to be filed under seal
and allowing him to remain anonymous through the end of discovery. (Id. at 7).
Plaintiff also
claims that there is no viable alternative to identify the infringer and thus the subpoenaed
information is relevant. (I d. at 8-1 0).
i. Legal Standard
Federal Rule of Civil Procedure 45(c)(3)(A) ("Rule 45") sets forth the circumstances
under which the Court must quash a subpoena. In relevant part, Rule 45 provides that on timely
motion, the issuing court must quash a subpoena that: "(iii) requires disclosure of privileged or
other protected matter, if no exception or waiver applies; or (iv) subjects a person to an undue
burden." FED. R. Clv. P. 45(c)(3)(A)(iii)-(iv). "The party seeking to quash the subpoena bears
the burden of demonstrating that the requirements of [Rule 45] are satisfied." Malibu Media,
LLC v. John Does 1-15, No. 12-2077, 2012 WL 3089383, at *5 (E.D. Pa. Jul. 30, 2012) (citing
City ofSt. Petersburg v. Total Containment, Inc., No. 07-191,2008 WL 1995298, at *2 (E.D. Pa.
May 5, 2008)). This has been described as "a heavy burden." Malibu Media, LLC v. Does# 130, 2012 WL 6203697, at *2 (internal citations omitted). The Court considers "whether the
Defendants have standing ... , the relevancy of the production sought, whether any privilege or
protection applies . . . , and whether the subpoena subject Defendants to undue burden."
Schrnulovich v. 1161 R. 9, LLC, No. 07-597, 2007 WL 2362598, at *2 (D.N.J. Aug. 15, 2007)
(Bongiovanni, J.).
11.
Standing
Generally, a motion to quash or modify a subpoena directed to a non-party must be
brought by the non-party itself. See Thomas v. Marina Assocs., 202 F.R.D. 433, 434-35 (E.D.
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Pa. 2001). However, "[a] party has standing to bring a motion to quash or modify a subpoena
upon a non-party when the party claims a personal privilege in the production sought."
Schmulovich, 2007 WL 2362598, at *2 (citing DIRECTV, Inc. v. Richards, No. 03-5606, 2005
WL 1514187, at *1 (D.N.J. June 27, 2005) (Brown, J.) (citing Catskill Dev., LLC v. Park Place
Entm't Corp., 206 F.R.D. 78, 93 (S.D.N.Y.2002)). For example, a party has sufficient standing
to challenge a subpoena issued to a bank that seeks disclosure of that party's financial records.
Schmulovich, 2007 WL 2362598, at *2. This Court is satisfied that John Doe 14 has standing to
bring this Motion because the subpoena seeks disclosure of his personal identification
information.
iii. Plaintiff's third-party subpoena does not seek privileged or protected
information
The Court will first examine Defendant's claim that the subpoena should be quashed
because it seeks "personal identification information." (Dkt. No. 12, at 5). Rule 45 requires a
court to quash a subpoena if the subpoena seeks "disclosure of privileged or other protected
matter, if no exception or waiver applies." FED. R. Crv. P. 45(c)(3)(A)(iii). However, "[t]he
burden rests squarely on the Defendant, as the moving party, to demonstrate that a privilege
exists and that the subpoena would disclose such information." Malibu Media, LLC v. John
Does 1-15, 2012 WL 3089383, at *5 (citing Total Containment, 2008 WL 1995298, at *2).
Defendant does not claim privilege but rather claims that his personal identification
information is "confidential" and that Defendant has "personal and proprietary interests" over
this information. (Dkt. No. 12, at 5). The Court finds this statement unpersuasive. See, e.g.,
Patrick Collins, Inc. v. John Does 1-13, No. 12-7620, 2013 WL 3466833 (D.N.J. July 10, 2013)
(Bongiovanni, J.).
Courts have consistently ruled that "Internet subscribers do not have a
reasonable expectation of privacy in their subscriber information." Sony Music Entm't v. Does
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1-40, 326 F. Supp. 2d 556, at 566-67 (S.D.N.Y. 2004) (citing Achte/Neunte Boll Kino
Beteiligungs Gmbh & Co. Kg. v. Does 1-4, 577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010)). This
is because "[I]nternet subscribers have already voluntarily conveyed their subscriber
information-name, address, and phone number to their [I]nternet [S]ervice [P]rovider." Malibu
Media, LLC v. John Does 1-15, 2012 WL 3089383, at *8 (citing First Time Videos, LLC v.
Does 1-500,276 F.R.D. 241,257 (N.D. Ill. 2011); Achte/Neunte, 736 F. Supp. 2d at 216).
In this case, John Doe 14 has voluntarily disclosed his personal information to his service
provider, Comcast, in order to set up his Internet account. Accordingly, John Doe 14 cannot now
claim that such information is so confidential as to establish a basis for quashing a subpoena.
See, e.g., First Time Videos, 276 F.R.D. at 247-248 (finding disclosure of personal information
to ISP negates privacy interest); Call of the Wild Movie, LLC v. Smith, 274 F.R.D. 334, 339340 (D.D.C. 2011) (same).
iv. Plaintiff's third-party subpoena does not impose an undue burden on
Defendant John Doe 14
Generally, a party generally cannot challenge a third-party subpoena based on a theory of
undue burden.
See Malibu Media, LLC v. John Does 1-15, 2012 WL 3089383, at *8
("Defendant is not faced with an undue burden because the subpoena is directed at the [I]nternet
[S]ervice [P]rovider and not the Defendant."); Malibu Media, LLC v. John Does No. 1-30, 2012
WL 6203697, at *4 ("Defendants do not have standing to contest the third-party Subpoenas on
the basis of undue burden."); Third Degree Films, Inc. v. Does 1-118, No. 11-cv-03006, 2011
WL 6837774, at *3 (D. Md. Dec. 28, 2011) ("Defendants' argument that the subpoena presents
an undue burden is unavailing because the subpoena is directed toward the ISPs and not the Doe
Defendants and accordingly does not require them to produce any information or otherwise
respond.").
Instead, "[i]t is the Internet Service Provider that is compelled to disclose the
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information, and thus, its prerogative to claim an undue burden." Malibu Media, LLC v. John
Does 1-15, 2012 WL 3089383, at *8 (citing First Time Videos, 276 F.R.D. at 257). Here,
because the subpoena is directed to a third party, Comcast, John Doe 14 cannot establish that it
imposes an undue burden upon him.
v. The risk of reputational injury does not present an undue burden
Defendant John Doe 14 contends that "the risk of reputational injury to an individual
from public exposure and association with the Malibu Media, LLC allegations-even if later
disproven-is too great and presents an undue burden" to him. (Dkt. No. 12, at 7). In order to
establish an undue burden, Defendant must show a "clearly defined and serious injury." City of
St. Petersburg, No. 07-191, 2008 WL 1995298, at *2 (E.D. Pa. May 5, 2004) (citing Transcor,
Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 592-93 (D. Kans. 2003)). Here, John Doe 14's
broad claim of reputational injury fails to demonstrate a "clearly defined and serious injury."
See Malibu Media, LLC v. John Does 1-15, 2012 WL 3089383, at *9.
While the Court
acknowledges that "there is some social stigma attached to consuming pornography . . . it is
[nonetheless] the rare civil lawsuit in which a defendant is not accused of behavior of which
others may disapprove."
Patrick Collins, Inc. v. John Does 1-54, No. 11-1602, 2012 WL
911432, at *4 (D. Ariz. Mar. 19, 2012) (denying a protective order to shield defendant accused
of downloading pornography using BitTorrent from annoyance, embarrassment, oppression, or
undue burden). If "any defendant could quash a subpoena based on the mere possibility that
someone else has used the defendant subscriber's IP address to perpetuate the alleged
infringement" then a plaintiff would be unable to enforce its rights. Id.
Here, if the Plaintiff or Defendant believes that sealing any court document is
appropriate, it is free to file the appropriate sealing motion pursuant to Local Rule 5.3. In
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addition, prior to filing an Amended Complaint to substitute a John Doe defendant, specifically
John Doe 14, with the proper name of a defendant, Plaintiff shall ensure it has a sufficient factual
basis for the assertions made. See Malibu Media, LLC v. John Does 1-11, No. 12-7726, 2013
WL 1504927, at *6 (D.N.J. Apr. 11, 2013) (Hammer, J.); Patrick Collins, 2013 WL 3466833, at
*5. The Court does not authorize Plaintiff to rely solely on the Internet subscriber's association
with the IP address to supply that basis. Malibu Media, LLC v. John Does 1-11. 2013 WL
1504927, at *6.
vi. The information sought by the subpoena is relevant
"A Rule 45 subpoena served in conjunction with discovery must fall within the scope of
proper discovery under Fed. R. Civ. P. 26(b) (1)." Schmulovich, 2007 WL 2362598, at *2
(citing Transcor, 212 F.R.D. at 591).
If a subpoena falls outside the scope of permissible
discovery, the Court has authority to quash or modify it upon timely motion by the party served.
Id. Of course, the scope of discovery in federal litigation is broad. See FED. R. Crv. P. 26(b )(1 ).
Parties may obtain discovery regarding "any nonprivileged matter that is relevant to any party's
claim or defense-including . . . the identity and location of persons who know of any
discoverable matter." Id.
Defendant John Doe 14 claims that the information linked to an IP address cannot be
used to identify the alleged copyright infringer because the IP address only identifies the Internet
subscriber and not the alleged individual infringer. (Dkt. No. 12, at 78). 7 However, the Court
finds this argument unpersuasive. The appropriate inquiry under Rule 26(b )(1) is not whether
the information sought will lead to identifying the infringer but whether the information sought
7
John Doe 14 explained that he lives in a sixteen (16) story residential structure, and that his
connection is maintained in a common lounge area so that any resident in the building could use
his IP address. (Dkt. No. 12, at 6-7).
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reasonably leads to the discovery of admissible evidence. FED. R. CIV. P. 26(b )(1 ). The Court
notes that it is possible that the Internet subscriber did not download the infringing material. It is
also possible, however, that the subscriber either knows, or has additional information which
could lead to the identification of the alleged infringer. See Patrick Collins, Inc., 2013 WL
3466833, at *4; Malibu Media, LLC v. John Does 1-15, 2012 WL 3089383, at *10; Malibu
Media, LLC v. Does 1-11, 2013 WL 1504927, at *6. Accordingly, the Court finds that the
information sought by the subpoena is relevant.
III.
CONCLUSION
For the aforementioned reasons, the Motions of John Doe 4 and 9 to sever and dismiss
the actions against them are GRANTED without prejudice. Additionally, the Motions of John
Does 4 and 9's to quash the subpoenas issued to Comcast are GRANTED without prejudice
since they are no longer parties to this action. The Court also sua sponte quashes the subpoenas
issued to Comcast for John Does 1, 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, and 18 since they
are no longer parties to this action. Finally, the Motion of John Doe 14 to quash or vacate the
subpoena issued to Com cast is DENIED.
United States Magistrate Judge
Date: December 18,2013
15
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