MALIBU MEDIA, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 96.57.109.42
Filing
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MEMORANDUM OPINION and ORDER denying 7 Motion to Quash. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/2/2015. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 96.57.109.42,
Defendant.
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Civil Action No. 15-1821 (AET)
MEMORANDUM OPINION
AND ORDER
BONGIOVANNI, Magistrate Judge
This matter comes before the Court on Defendant John Doe’s (“Doe”) Motion to Quash
Subpoena.
[Docket Entry No. 7]. Plaintiff Malibu Media, LLC (“Plaintiff”) has filed its
opposition to the Plaintiff’s Motion. [Docket Entry No. 8]. The Court has fully reviewed and
considered all papers submitted in support of, and in opposition to, Doe’s Motion and considers
the same without oral argument pursuant to FED. R. CIV. P. 78. For the reasons set forth more
fully below, consistent with this Memorandum Opinion and the accompanying Order, Doe’s
motion is DENIED.
I.
INTRODUCTION
This is an action for copyright infringement brought against an unknown individual who
is identifiable to Plaintiff only by his or her Internet Protocol (“IP”) address. In order to obtain
the identity of the Defendant, the Plaintiff on March 30, 2015 moved the Court to file a Third
Party Subpoena on Defendant’s Internet Service Provider (“ISP”), pursuant to FED. R. CIV. P.
(“Rule”) 45. [See Docket Entry No. 5]. Upon a showing of good cause, the Court on April 20,
2015 granted the Plaintiff’s Motion. [See Docket Entry No. 6]. The Defendant now seeks to
quash the Plaintiff’s third party subpoena and, it appears, also wants to protect the identity of
their client until the Plaintiff makes a “balanced and candid” disclosure of all “material facts” as
required by the heightened candor requirement for ex parte communications under New Jersey
Rule of Professional Conduct 3.3(d) (“NJRPC 3.3(d)”). The Plaintiff says in response that the
Defendant has not cited any valid reason to quash the Plaintiff’s third party subpoena under Rule
45.
II.
ANALYSIS
1. Legal Standard
Rule 45(d)(3)(A) sets forth the circumstances under which the Court must quash a
subpoena. In relevant part, the Rule provides a Court must quash or modify a subpoena that: “(i)
fails to allow a reasonable time to comply; (ii) requires excessive travel by a non-party; (iii)
requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.”
FED. R. CIV. P. 45(d)(3)(A).
Similarly, Rule
45(d)(3)(B) sets forth the circumstances under which the Court may quash or modify a subpoena.
In relevant part, the Rule provides a Court may quash or modify a subpoena when that subpoena
requires: “(i) disclosing a trade secret or other confidential research, development, or commercial
information; or (ii) disclosing an unretained expert's opinion or information that does not
describe specific occurrences in dispute and results from the expert's study that was not
requested by a party.” FED. R. CIV. P. 45(d)(3)(B).
“The party seeking to quash the subpoena bears the burden of demonstrating that the
requirements of [FED. R. CIV. P. 45] are satisfied.” Malibu Media, LLC v. John Does 1-15, 2012
WL 3089383, at *5 (E.D. Pa. Jul. 30, 2012) (citing City of St. Petersburg v. Total Containment,
Inc., 2008 WL 1995298, at *2 (E.D. Pa. May 5, 2008)). This has been described as “a heavy
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burden.” Id. (citing Dexter v. Cosan Chem. Corp., 2000 U.S. Dist. LEXIS 22134, at *7-8 (D.N.J.
Oct. 24, 2000)).
2. Standing
Although the Defendant does not state that he or she has the standing to contest the
Plaintiff’s third party subpoena, the Court will sua sponte address this issue.
Generally, a motion to quash or modify a subpoena must be brought by the individual to
whom it was directed. See Thomas v. Marina Assocs., 202 F.R.D. 433, 434-435 (E.D. Pa. 2001).
However, a party to an action has standing to quash or modify a non-party subpoena where the
party seeking to quash or modify the subpoena claims a privilege or privacy interest in the
subpoenaed information. Id.; see DIRECTV, Inc. v. Richards, No. Civ. 03-5606 (GEB), 2005
WL 1514187, at *1 (D.N.J. June 27, 2005) (citing Catskill Dev., LLC v. Park Place
Entertainment 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. See Schmulovich v. 1161 Rt. 9 LLC, 2007 WL 2362598.
Here, the Defendant argues that because the third party subpoena was filed with the Court
ex parte, the Plaintiff was therefore required to divulge “all material facts,” and particularly,
adverse facts. Because the Plaintiff has allegedly failed to do so, the Defendant suggests “[a]t a
minimum, the present subpoena ought to be quashed until such time as Malibu can be bothered
to submit a subpoena request that actually fulfills the heightened candor requirement of NEW
JERSEY RPC 3.3(d)”. See Defendant’s Motion to Quash and Memorandum in Support, Docket
Entry No. 7, at *27. The Defendant has graciously included in their motion and attached
memorandum in support, every conceivable “adverse material fact” under the sun. The “adverse
material facts” include a host of bullet-pointed anecdotal arguments that largely can be
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characterized as ethical complaints about the way the Plaintiffs have chosen to protect their
copyrighted content, the assertion that the subscriber assigned the infringing IP address is not
necessarily the infringer of the copyright, and that pornography may have a potentially harmful
effect on the human brain.
While some of these points are more relevant than others to the final resolution of the
substantive copyright issues in this litigation, none of these arguments are relevant to the issues
involved in determining whether a non-party subpoena must, or may, be quashed. The
satisfaction of a rule of professional conduct is not a prerequisite for the filing of a third party
subpoena under Rule 45, and is completely and utterly irrelevant to determining whether or not
the Defendant has a privacy interest that would give him standing to quash said third party
subpoena. Nor do any of the Defendant’s other arguments, most notably the Plaintiff’s alleged
failure to disclose the potentially harmful effects of pornography on the human brain, have any
bearing whatsoever on whether or not the Plaintiff’s third party subpoena must be, or may be,
properly quashed or modified under Rule 45. Therefore, the Court must now determine standing,
by first turning to whether the information sought by the subpoenas is indeed privileged or
protected material.
3. Plaintiff’s third-party Subpoenas do not seek privileged or protected material
FED R. CIV. P. 45(c)(3)(A)(iii) requires a court to quash a subpoena if the subpoena seeks
“disclosure of privileged or other protected matter, if no exception or waiver applies.” 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, 2012
WL 3089383, at *5 (citing Total Containment, 2008 WL 1995298, at *2).
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Defendant cites no case law holding that standing has been found when the movants
assert that material is privileged, seeks to protect a proprietary interest, or claims a privacy
interest. Similarly, Defendant fails to take the next step and assert that the information sought by
the instant third party subpoena is indeed privileged, proprietary, or private. The Defendant
simply states that the Plaintiff’s failure to explain all adverse material facts as required by
NJRPC 3.3(d) is a sufficient basis to quash the subpoena. The Court does not find this
conclusory statement persuasive. This is especially true in light of the fact that courts have
consistently held that “Internet subscribers do not have a reasonable expectation of privacy in
their subscriber information.” Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. Kg. v. Does 14, 577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010)). This is because “the [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, 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 212, 216).
Here, the Defendant, having already disclosed his or her personal information to the
Defendant’s ISPs in order to set up their Internet accounts, cannot make out a claim of privilege
or privacy that would serve as a basis for standing to quash the Subpoenas under Rule 45. See,
e.g., First Time Videos, 276 F.R.D. 241, 247-48 (finding disclosure of personal information to
ISP negates privacy interests); Call of the Wild Movie, LLC v. Smith, 274 F.R.D. 334, 339-40
(D.D.C. 2011) (same). Therefore, because the Defendant cannot demonstrate he has a privilege
or privacy interest at stake, the Defendant likewise cannot demonstrate he or she has the standing
to quash or modify the Plaintiff’s third party subpoena. Consequently, the Defendant’s Motion is
hereby Denied.
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III.
CONCLUSION
For the reasons set forth above, Defendant’s Motions to Quash Subpoena is DENIED.
Dated: December 2, 2015
s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
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