Malibu Media, LLC v. Doe
Filing
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Memorandum of Opinion and Order: Defendant's Motion to Quash Subpoena to Third-Party Time Warner Cable (Doc. 10 ) is DENIED. Judge Patricia A. Gaughan on 11/5/15. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Malibu Media, LLC
Plaintiff,
Vs.
John Doe Subscriber Assigned
IP Address 76.190.140.193,
Defendant.
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CASE NO. 1:15 CV 1342
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
INTRODUCTION
This matter is before the Court upon Defendant’s Motion to Quash Subpoena to ThirdParty Time Warner Cable (Doc. 10). This case arises under the United States Copyright Act. For
the reasons that follow, the motion is DENIED.
FACTS
Plaintiff Malibu Media, LLC, copyright owner of a number of adult motion pictures, filed
this action against defendant claiming that defendant used a file distribution network to illegally
copy and distribute complete copies of defendant’s copyrighted works. When plaintiff filed this
action on July 3, 2015, it did not know defendant’s identity. Instead, it knew defendant only by
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the internet protocol (“IP”) address defendant’s internet service provider (“ISP”) assigned him or
her. This Court allowed plaintiff to serve a Rule 45 subpoena on Time Warner Cable,
defendant’s ISP, that would require Time Warner to identify the name and address of the
individual assigned the IP address identified in the complaint. Defendant now moves to quash
the subpoena, and plaintiff opposes.
ANALYSIS
According to Rule 45 of the Federal Rules of Civil Procedure, a court must quash or
modify a subpoena that does not allow a reasonable time to comply, requires compliance beyond
specific geographical limits, requires disclosure of privileged or other protected matter, or
subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A). The court may also consider
“whether (i) the subpoena was issued primarily for the purposes of harassment, (ii) there are
other viable means to obtain the same evidence, and (iii) to what extent the information sought is
relevant, nonprivileged, and crucial to the moving party's case.’” Recycled Paper Greetings, Inc.
v. Davis, 2008 WL 440458, at *2 (N.D. Ohio Feb.13, 2008) (quoting Bogosian v. Woloohojian
Realty Corp., 323 F.3d 55, 66 (1st Cir.2003) (citing cases)). The moving party bears the burden
of showing that the subpoena violates Rule 45. Id. at *3.
Defendant argues that the Court should quash the subpoena to Time Warner because the
subpoena would only reveal the identity and contact information of the subscriber associated
with the IP address listed in the complaint, not necessarily the identity of the actual infringer.
Defendant also asserts that compliance with the subpoena would present an undue burden
because plaintiff is primarily seeking defendant’s identity for the purpose of harassment and to
extract a settlement rather than risk being publicly named in a lawsuit involving pornography.
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Defendant has not shown that the subpoena to Time Warner should be quashed. The
scope of a subpoena is “subject to the general relevancy standard applicable to discovery under
Fed. R. Civ. P. 26(b)(1).” Cawley v. Eastman Outdoors, Inc., 2014 WL 4656381, at *2 (N.D.
Ohio Sept. 16, 2014) (citations omitted). Under Rule 26, information is discoverable if it
“appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.
26(b)(1). Here, in its complaint, plaintiff has already proffered evidence that its investigator
established a direct connection with defendant’s IP address and determined that a user at
defendant’s IP address downloaded, copied, and distributed more than 60 complete copies of
plaintiff’s movies without authorization. Even if the subscriber is not the actual copyright
infringer, the subscriber’s identity meets the broad scope of discovery in Rule 26 because it is
reasonably calculated to lead to the discovery of the actual infringer. See, e.g., Malibu Media,
LLC v. Doe subscriber assigned IP address 71.238.55.56, 2015 WL 1886210, at *3 (E.D. Mich.
April 24, 2015) (denying motion to quash subpoena to ISP provider because the subscriber’s
identity is relevant); Malibu Media, LLC v. Doe subscriber assigned IP address 65.25.29.69, 14CV-2744, at 4 (N.D. Ohio March 23, 2015) (“At the very least, having John Doe’s name and
contact information will allow Plaintiff to investigate its copyright claims and determine who
exactly should be named as the defendant in this case.”).
As to defendant’s argument that the subpoena would pose an undue burden, plaintiff
argues that defendant has no standing to challenge the subpoena issued to third-party Time
Warner. Ordinarily, a party has no standing to oppose a subpoena issued to a non-party unless
the party can demonstrate a claim of privilege or personal right in the documents sought.
Donahoo v. Ohio Dept. of Youth Servs., 211 F.R.D. 303, 306 (N.D. Ohio 2002); Mann v. Univ. of
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Cincinnati, 1997 WL 280188, *4 (6th Cir.1997) (per curiam). Some courts have found that
accused copyright infringers in defendant’s position have standing to object to a subpoena
because they have “at least a minimal privacy interest in the information requested by the
subpoena.” Malibu Media, LLC v. Doe subscriber assigned IP address 65.25.29.69, 14-CV2744, at 4 (citing cases) (emphasis added). But defendant has cited no case that has found
standing on the basis of undue burden, and many cases have found to the contrary.1 Malibu
Media, LLC v. John does 1-6, 291 F.R.D. 191 (N.D. Ill. 2013) (citing cases); First Time Videos,
LLC v. Does 1-500, 276 F.R.D. 241, 250 (N.D. Ill. 2001) (“The subpoenas served on the Doe
Defendants’ ISPs do not subject the Doe Defendants to an undue burden; 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.”). Because defendant is not the one
required to respond to the subpoena, the Court finds that defendant cannot show undue burden
and therefore has no standing to quash the subpoena on this basis.
To the extent that defendant’s second argument is based on a privacy interest in the
information sought, however, the Court finds that he or she does have standing to challenge the
subpoena. Defendant has only a minimal privacy interest in the information requested by the
subpoena because defendant has already shared his or her identity with Timer Warner, yet this
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Defendant maintains that plaintiff and its counsel violated Model Rule of
Professional Conduct 3.3 (Candor Toward the Tribunal) in not citing Malibu
Media, LLC v. Doe subscriber assigned IP address 65.25.29.69, 14-CV-2744, and
in stating that they had no knowledge of any court that had found standing on the
basis of undue burden. But Malibu Media v. Doe subscriber assigned IP address
65.25.29.69 and the cases cited therein found standing because the defendant had
a privacy interest in the information sought, not because complying with the
subpoena posed an undue burden to the defendant. Thus, the Court finds that
plaintiff and its counsel did not violate Rule 3.3.
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interest is sufficient for purposes of standing. See, e.g., Malibu Media, LLC v. Doe subscriber
assigned IP address 65.25.29.69, 14-CV-2744, at 4 (quoting Third Degree Films, Inc. V. Does 1108, 2012 WL 669055, at *2 (D. Md. Feb. 28, 2012) (“Although this interest is ‘exceedingly
small,’ it constitutes some personal right or privilege’ in the information sought, thus giving John
Doe standing to seek to quash the subpoena.”).
Defendant argues that once plaintiff knows his or her identity, it will use the information
to harass, embarrass, and coerce him or her into settling the case. Judges regularly complain that
plaintiff: (1) has no interest in actually pursuing its legal claims but instead is using the court
system to coerce settlement from potential defendants in lieu of being named in a lawsuit
involving pornography; (2) ignores court orders designed to protect the privacy of defendants;
and (3) engages in abusive tactics with the purpose of intimidating defendants into an early
settlement. See, e.g., Malibu Media, LLC v. Ryan Ramsey, Order to Show Cause, ECF Doc. No.
15, No. 14–cv–718 (S.D. Ohio May 26, 2015) (surveying plaintiff’s coercive litigation tactics);
Malibu Media, LLC v. Doe subscriber assigned IP address 66.108.67.10, 2015 WL 4092417
(S.D.N.Y. July 6, 2015).
Plaintiff’s past tactics place courts in a difficult position: granting the motion to quash
effectively prevents plaintiff from pursuing what appears to be a legitimate copyright
infringement claim because plaintiff could not serve defendant, but denying the motion raises the
possibility that plaintiff will engage in the same gamesmanship that judges have complained of
in previous litigation. Here, given the large number of complete movies that defendant is alleged
to have copied and distributed over an almost two-year period, the Court finds that defendant’s
minimal privacy interest in the information plaintiff seeks is outweighed by plaintiff’s right to
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use the judicial process to pursue its copyright infringement claim. In addition, plaintiff has
already agreed to allow defendant to proceed anonymously, which alleviates plaintiff’s concerns.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Quash Subpoena to Third-Party Time
Warner Cable (Doc. 10) is DENIED.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 11/5/15
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