Riding Films, Inc. v. Does 129-193

Filing 14

OPINION AND ORDER denying 5 & 6 motion to quash subpoena and motion for severance. Signed by Magistrate Judge Norah McCann King on 7/01/13. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RIDING FILMS, INC.,
Plaintiff,
vs.
Civil Action 2:13-cv-46
Judge Marbley
Magistrate Judge King
JOHN DOES 129-193,
Defendants.
OPINION AND ORDER
This is a copyright action in which plaintiff alleges that
defendants copied and distributed plaintiff’s copyrighted work, the
motion picture “Dawn Rider.”

Complaint, Doc. No. 1, ¶ 5.

are otherwise identified only by IP addresses.
Complaint.

Defendants

Exhibit B, attached to

This matter is now before the Court on defendant Doe No.

163’s Motion to Quash Subpoena and Motion for Severance, Doc. No. 5,
and defendant Doe No. 189’s Motion to Quash Subpoena and Motion for
Severance, Doc. No. 6.

For the reasons that follow, the motions are

DENIED.
I.

ALLEGATIONS, CLAIMS AND PROCEDURAL BACKGROUND
Plaintiff Riding Films, Inc., a limited liability company, is a

developer, producer and/or distributor of motion pictures that has
exclusive ownership rights over a motion picture entitled “Dawn
Rider.”

Complaint, ¶¶ 3, 5, 8, 9.

Plaintiff alleges that unknown

defendant Does 129-193 (collectively, “Doe defendants” or “unknown

1

defendants”) copied and distributed plaintiff’s copyrighted work, Dawn
Rider.

Id. at ¶ 5.

According to plaintiff, Doe defendants used a

peer-to-peer (“P2P”) network known as “BitTorrent protocol” or
“torrent.”

Id.

Plaintiff alleges that individuals, such as the

unknown defendants, joined together as a “swarm” in order to use the
BitTorrent protocol to illegally download copyrighted material:
The BitTorrent protocol makes even small computers with low
bandwidth capable of participating in large data transfers
across a P2P network. The initial file-provider
intentionally elects to share a file with a torrent
network. This initial file is called a seed. Other users
(“peers”) connect to the network and connect to the seed
file to download. As yet additional peers request the same
file each additional user becomes a part of the network
from where the file can be downloaded. However, unlike a
traditional peer-to-peer network, each new file downloader
is receiving a different piece of the data from users who
have already downloaded the file that together comprises
the whole. This piecemeal system with multiple pieces of
data coming from peer members is usually referred to as a
“swarm.” The effect of this technology makes every
downloader also an uploader of the illegally transferred
file(s). This means that every “node” or peer user who has
a copy of the infringing copyrighted material on a torrent
network can also be a source of download, and thus
distributor for that infringing file.
Id.
Plaintiff goes on to allege that the possibility of successfully
downloading increases when more peers join the swarm:
This distributed nature of BitTorrent leads to a rapid
viral spreading of a file throughout peer users. As more
peers join the swarm, the likelihood of a successful
download increases. Because of the nature of a BitTorrent
protocol, any seed peer that has downloaded a file prior to
the time a subsequent peer downloads the same file can
automatically be a source for the subsequent peer so long
as that first seed peer’s computer is online at the time
the subsequent peer downloads a file. Essentially, because
of the nature of the swarm downloads as described above,
every infringer is stealing copyrighted material from other
potential infringers in numerous jurisdictions around the
world, and each is also distributing infringing material.
2

Id. at ¶ 6.
According to plaintiff, Doe defendants’ copyright infringements
permit them and others to illegally obtain and distribute at no cost
plaintiff’s unauthorized copyrighted works.

Id. at ¶ 8.

Distributing

even a portion of an unlawful copy of a copyrighted work, such as Dawn
Rider, “can result in the nearly instantaneous worldwide distribution
of that single copy to an unlimited number of people.”

Id.

On January 16, 2013, plaintiff filed the instant action, alleging
that Doe defendants unauthorized copying, distribution and use of
plaintiff’s copyrighted work by the Doe defendants violated
plaintiff’s exclusive rights in Dawn Rider.

Id. at ¶¶ 12-17.

Plaintiff alleges that Doe defendants’ willful, intentional, wanton
and/or malicious and/or outrageous acts of copyright infringement
(made with full knowledge of plaintiff’s ownership copyrights of Dawn
Rider) will cause plaintiff irreparable injury unless they are
restrained and enjoined.

Id. at ¶¶ 18-21.

Plaintiff seeks statutory

and punitive damages for each act of infringement of its copyright as
well as costs and attorneys’ fees.

Id. at ¶ 22-25.

Plaintiff also

seeks injunctive relief prohibiting each Doe defendant from further
infringing plaintiff’s copyright and ordering each defendant to
destroy all copies of the copyrighted Dawn Rider made in violation of
plaintiff’s copyrights.

Id. at ¶ 26.

At the time the action was filed, plaintiff did not know the
names of the Doe defendants.

Id. at ¶ 10.

Instead, plaintiff knew

each defendant only by (1) the internet protocol (“IP”) address
assigned to that defendant by his or her internet service provider,
3

and (2) the date and time that the infringing activity of each
defendant was observed.

Id.

See also id. at ¶ 16 (“The Plaintiff has

identified each Defendant by the IP address assigned to that Defendant
by his or her ISP and the date and at the time at which the infringing
activity of each Defendant was observed.”).

Plaintiff alleges that

each Doe defendant committed violations of the same law (17 U.S.C. §
101, et seq.) “within the same series of transactions or occurrences
(e.g. downloading and distribution of the same copyrighted Motion
Picture [Dawn Rider] owned by Plaintiff) and by using the same means
(BitTorrent network).”

Id. at ¶ 11.

Plaintiff also alleges that “all

of the infringements alleged in this lawsuit arise from the exact same
unique copy of Plaintiff’s movie as evidenced by the cryptographic
hash value.
Id.

The Defendants are all part of the exact same ‘swarm.’”1

According to plaintiff, the Doe defendants’ illegal acts occurred

in the same series of transactions and the Doe Defendants conspired
together to copy and/or distribute Dawn Rider:
Defendants’ acts occurred in the same series of
transactions because each Defendant downloaded and/or
distributed, or offered to distribute the Motion Picture
[Dawn Rider] to other infringers on the network, including
the Doe Defendants and/or other network users, who in turn
downloaded and/or distributed the Motion Picture.
Therefore, the Defendants each conspired with other
infringers on the BitTorrent network to copy and/or
distribute the Motion Picture, either in the same
transaction or occurrence or a series of transactions or
occurrences.
Id.
On the same day that the Complaint was filed, plaintiff also
1

“That value acts as a ‘unique digital fingerprint’ that ensures a piece of
data belongs in a particular torrent file.” Malibu Media, LLC v. Pelizzo,
NO. 12-22768-CIV-SEITZ/SIMONTON, 2012 U.S. Dist. LEXIS 180980, at *4 (S.D.
Fla. Dec. 21, 2012) (citations omitted).

4

filed an ex parte motion seeking to conduct limited, expedited
discovery of non-party internet service providers in order to
determine the identities of defendants.

Doc. No. 2.

Specifically,

plaintiff sought leave to serve a subpoena pursuant to Fed. R. Civ. P.
45 on certain ISPs in order to discover the name, address(es),
telephone number(s), e-mail address(es) and MAC address of each Doe
defendant that plaintiff has identified to date (as well as those
plaintiff may identify in the future).

Id. at 20-21.

Plaintiff

represents that it will use this information only for the purpose of
pursuing its claims in this litigation.

Id. at 21.

This Court

granted plaintiff’s ex parte motion, concluding that plaintiff had
established good cause because it could not meet its service
obligation under Fed. R. Civ. P. 4 without the requested discovery.
Order, Doc. No. 4, pp. 1-2.
On February 22, 2013, plaintiff issued a subpoena to WideOpenWest
(“WOW”), seeking information attached to certain IP addresses (“the
subpoenaed information”):
In accordance with the attached court order, please provide
all records and information sufficient to identify the
people or entities whose Internet Protocol Address (“IP
Address”) are listed in Attachment A to this Subpoena
including the following: personal and business names, any
and all addresses, any and all telephone numbers, any and
all e-mail addresses, and Media Access Control addresses
(“MAC Addresses”).
Exhibit A, attached to Doc. Nos. 5 and 6 (“the subpoena”).

The

subpoena identified a response date of March 12, 2013, which was later
extended to April 5, 2013.

Id.; Exhibit D, attached to Doc. Nos. 5

and 6.
On February 28, 2013, WOW notified the persons associated with
5

the identified IP addresses that WOW had received a subpoena seeking
disclosure of its customer information.
Nos. 5 and 6.

Exhibit D, attached to Doc.

WOW further advised these customers that it is legally

obligated to respond to the subpoena, but that the customers
associated with the targeted IP addresses could move to quash the
subpoena.

Id.

Thereafter, two of the Doe defendants, Nos. 163 and 189 (“the
moving defendants”), filed motions to quash and motions to sever the
claims against the various Doe defendants.

See Doc. Nos. 5 and 6.

Plaintiff opposes these motions, Doc. Nos. 7 and 8, and the moving
defendants have filed a reply, Doc. Nos. 9 and 10.2

These matters are

therefore now ripe for resolution.
II.

REQUEST TO QUASH SUBPOENAS
A.

Standard

The Federal Rules of Civil Procedure grant parties the right to
“obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense. . . .”

Fed. R. Civ. P. 26(b)(1).

Relevance for discovery purposes is extremely broad.

Lewis v. ACB

Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998).

However,

“district courts have discretion to limit the scope of discovery where
the information sought is overly broad or would prove unduly
burdensome to produce.”

Surles ex rel. Johnson v. Greyhound Lines,

2

The motions to quash and motions to sever, as well as the opposing memoranda
and reply memoranda, are identical except for reference to the specific
moving Doe defendant. For ease of reference, the Court will refer only to
the first filed motion and related briefs, i.e., Motion to Quash and Motion
to Sever, Doc. No. 5 (“Motion”); Plaintiff’s Memorandum in Opposition to
Defendant Doe No. 163’s Anonymous Motion to Quash Subpoena and Motion for
Severance, Doc. No. 7 (“Memo. in Opp.”); Reply Memorandum in Support of
Motion to Quash Subpoena and Motion for Severance, Doc. No. 9 (“Reply”).

6

Inc., 474 F.3d 288, 305 (6th Cir. 2007) (citing Fed. R. Civ. P.
26(b)(2)).

In determining the proper scope of discovery, a district

court balances a party’s “right to discovery with the need to prevent
‘fishing expeditions.’”

Conti v. Am. Axle & Mfg., No. 08-1301, 326

Fed. Appx. 900, at *907 (6th Cir. May 22, 2009) (quoting Bush v.
Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)).
Under Rule 45 of the Federal Rules of Civil Procedure, parties
may command a nonparty to, inter alia, produce documents.
Civ. P. 45(a)(1).

Fed. R.

Rule 45 further provides that “the issuing court

must quash or modify a subpoena that . . . requires disclosure of
privileged or other protected matter, if no exception or waiver
applies; or subjects a person to undue burden.”
45(c)(3)(A)(iii), (iv).

Fed. R. Civ. P.

Although irrelevance or overbreadth are not

specifically listed under Rule 45 as a basis for quashing a subpoena,
courts “have held that the scope of discovery under a subpoena is the
same as the scope of discovery under Rule 26.”

Hendricks v. Total

Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (internal
quotation marks omitted).

The movant bears the burden of persuading

the court that a subpoena should be quashed.

See, e.g., Baumgardner

v. Lousiana Binding Serv., No. 1:11-cv-794, 2013 U.S. Dist. LEXIS
27494, at *4 (S.D. Ohio Feb. 28, 2013); Williams v. Wellston City Sch.
Dist., No. 2:09-cv-566, 2010 U.S. Dist. LEXIS 122796, at *21 (S.D.
Ohio Nov. 2, 2010).
B.

Discussion

Although unclear at times, the motions appear to raise the
following arguments in support of the requests to quash the subpoena:
7

(1) the moving defendants have standing to challenge the subpoena,
which requires the disclosure of privileged and/or protected
information and which imposes an undue burden, Motion, pp. 2, 4;
Reply, pp. 3-5; (2) the action is an effort to extort or coerce
settlements, Motion, p. 4; Reply, pp. 3, 8-10, 19; and (3) the
subpoena is not supported by good cause, Motion, p. 10; Reply, pp. 68.

The Court shall address each argument in turn.
1.

Standing

The parties disagree whether the moving defendants, who are not
the recipients of the subpoena, have standing to challenge the
subpoena directed to WOW, a third party.

“[A]bsent a claim of

privilege, a party has no standing to challenge a subpoena to a
nonparty.”

Novovic v. Greyhound Lines, Inc., 2:09-CV-00753, 2012 U.S.

Dist. LEXIS 9203, at *23 (S.D. Ohio Jan. 26, 2012) (quoting Donahoo v.
Ohio Dep’t of Youth Servs., 211 F.R.D. 303, 306 (N.D. Ohio 2002))
(internal quotation marks omitted).

See also Mann v. University of

Cincinnati, Nos. 95-3195 and 95-3292, 1997 U.S. App. LEXIS 12482, at
*13 (6th Cir. May 27, 1997) (citing 9A Charles Alan Wright and Arthur
R. Miller, Federal Practice and Procedure § 2459 (1995) (noting that
“ordinarily a party has no standing to seek to quash a subpoena issued
to someone who is not a party to the action unless the party claims
some personal right or privilege with regard to the documents
sought”)); Waite, Schneider, Bayless & Chesley Co. L.P.A. v. Davis,
No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253, at *14-15 (S.D. Ohio
Jan. 14, 2013) (“The only basis upon which a party could have standing
to quash a non-party subpoena would be a claim or personal right or
8

privilege.”) (citing Hackmann v. Auto Owners, Ins. Co., No. 2:05-cv876, 2009 U.S. Dist. LEXIS 15128 (S.D. Ohio Feb. 6, 2009)) (internal
citations omitted).

Personal rights or privileges supporting a claim

to standing “have been recognized with respect to personal bank
records, information in a personnel file, corporate bank records, or
Indian tribal records.”

Waite, Schneider, Bayless & Chesley Co.

L.P.A., 2013 U.S. Dist. LEXIS 5253, at *15.
Here, the Court understands that the moving defendants raise
three arguments to support their claim to standing, which the Court
shall address in turn.
a.

Personal right and proprietary interest in
confidential information

The moving defendants first argue that they have “standing to
move to quash the subpoena because it seeks disclosure of
identification information considered to be confidential and over
which [the moving defendants have] personal and proprietary
interests.”

Motion, p. 2 (citing, inter alia, Fed. R. Civ. P.

45(c)(3)(A)).

See also Reply, pp. 3-4 (citing cases for the

proposition that a claim to personal right or privilege in the
subpoenaed documents gives rise to a party’s standing to quash a nonparty subpoena and asserting that “Defendant has satisfied its
burden.”).

The moving defendants therefore apparently believe that

the subpoenaed information (name, address, telephone number, e-mail
address and MAC address associated with each IP address) is
confidential and/or is information over which they have a personal or
proprietary interest because they have an expectation of privacy in
this information.

See Reply, pp. 4-5 (citing Third Degree Films, Inc.
9

v. Does 1-108, No. 11-3007, 2012 WL 716221, at *2 (D. Md. Feb. 28,
2012) (concluding that a Doe defendant has standing to challenge a
subpoena because, inter alia, the Doe defendant has a privacy
interest, however minimal, in the contact information associated with
the IP address)).

The moving defendants further contend that “this

Court cannot conclude with any reasonable certainty that plaintiffs
have overcome the expectation of privacy by putative defendants.”

Id.

at 5 [sic].
Plaintiff disagrees, arguing that the moving defendants have no
privacy right in the subpoenaed information and that plaintiff’s right
to judicial process to protect its copyright outweighs any right to
privacy or to remain anonymous under the First Amendment to the United
States Constitution.

Memo. in Opp., pp. 4-5.

Plaintiff further

contends that the moving defendants had no reasonable expectation of
privacy in the subpoenaed information because they voluntarily
provided the information to a third-party ISP.
Plaintiff’s arguments are well-taken.

Id. at 5.

As an initial matter, the

moving defendants have not explained how the subpoenaed information is
similar to the type of information that this Court has previously
recognized as giving rise to standing.

See Waite, Schneider, Bayless

& Chesley Co. L.P.A., 2013 U.S. Dist. LEXIS 5253, at *15 (finding
personal rights or privileges attach to “personal bank records,
information in a personnel file, corporate bank records, or Indian
tribal records”).

Moreover, the moving defendants have not described

how, and the Court is not persuaded that, the subpoenaed records, if
disclosed, would harm the moving defendants or otherwise invade their
10

privacy.

Indeed, another district court within this circuit recently

rejected similar motions to quash a subpoena seeking the same
information as does the instant subpoena.

See, e.g., Breaking Glass

Pictures v. Doe, No. 3:13-CV-75, 2013 U.S. Dist. LEXIS 83225, at *4-6
(E.D. Tenn. June 13, 2013); Sojo Prods., Inc. v. Does 1-67, Nos. 3:12cv-599, 3:12-cv-600; 3:12-cv-601, 3:12-cv-602, 3:12-cv-603, 2013 U.S.
Dist. LEXIS 58602, at *4-7 (E.D. Tenn. Apr. 24, 2013); Safety Point
Prods. v. Does 1-57, No. 3:12-cv-601, 2013 U.S. Dist. LEXIS 49521, at
*3-5 (E.D. Tenn. Apr. 5, 2013).

In permitting expedited discovery so

as to enable plaintiffs in those cases to identify the unknown
defendants, the District Court for the Eastern District of Tennessee
noted that the defendants had not identified any privilege (such as
attorney-client or doctor-patient privilege) “that protects a person’s
name, address or phone from disclosure.”
2013 U.S. Dist. LEXIS 83225, at *5.

See also Sojo Prods., Inc., 2013

U.S. Dist. LEXIS 58602, at *5-6 (same).
U.S. Dist. LEXIS 49521, at *3-4.

Breaking Glass Pictures,

Cf. Safety Point Prods., 2013

That court concluded that the

unidentified defendants had no reasonable expectation of privacy in
the subpoenaed information because the defendants had already shared
that information with the ISP in order to obtain internet service.
Safety Point Prods., 2013 U.S. Dist. LEXIS 49521, at *4-5; Sojo
Prods., Inc., 2013 U.S. Dist. LEXIS 58602, at *5-6 (same).

Cf.

Breaking Glass Pictures, 2013 U.S. Dist. LEXIS 83225, at *5
(concluding that requested information is neither privileged nor
protected because defendants already shared the information with the

11

The Court finds this reasoning persuasive.3

ISP).

For all of these reasons, the Court concludes that the moving
defendants have failed to establish that they have standing to quash
the subpoena based on a personal or proprietary interest in the
subpoenaed information.
b.

Undue burden

The moving defendants also argue that they have “standing to move
to quash the subpoena because it imposes an undue burden under Fed. R.
Civ. P. 45(c)(3)(A)(iv).”

Motion, p. 2.4

See also id. at 3-4 (“If

this Court should force Wide Open West to turn over the requested
information, the risk [the moving defendants] would suffer
reputational injury even if Plaintiffs [sic] allegations are later
disproven are too great and present an undue burden to [the moving
defendants] under Fed. R. Civ. P. 45(c)(3)(a)(iv) [sic].”).
Plaintiff, however, contends that the moving defendants, who are not
the responding parties to the subpoena, lack standing to assert that
production of the subpoenaed information imposes an undue burden.
Memo. in Opp., pp. 5-6.
The moving defendants’ suggestion that they personally will face
an undue burden if WOW produces the subpoenaed information is
unavailing.

Rule 45 requires that the party issuing the subpoena

3

To the extent that they may have asserted such an argument, see Reply,
p. 6, the moving defendants similarly fail to explain how production of the
subpoenaed information infringes on any First Amendment right. Moreover, it
is well-established that the First Amendment does not protect copyright
infringement. See, e.g., Breaking Glass Pictures, 2013 U.S. Dist. LEXIS
83225, at *6 (citing First Time Videos v. Does 1-500, 276 F.R.D. 241 (N.D.
Ill. 2011)); Sojo Prods., Inc., 2013 U.S. Dist. LEXIS 58602, at *6-7 (same).
4
As discussed supra, this subdivision provides, in pertinent part, that “the
issuing court must quash or modify a subpoena that . . . subjects a person to
undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(iv).

12

“take steps to avoid imposing undue burden or expense on a person
subject to the subpoena.”

Fed. R. Civ. P. 45(c)(1) (emphasis added).

Cf. Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 457 (6th Cir.
2008) (“‘[D]istrict courts have discretion to limit the scope of
discovery where the information sought is overly broad or would prove
unduly burdensome to produce.’”) (quoting Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)) (emphasis
added).

Accordingly, this Court and another district court in this

circuit have previously concluded that only the entity responding to
the subpoena has standing to challenge the subpoena on the basis of
undue burden.

See Levitin v. Nationwide Mut. Ins. Co., 2:12-cv-34,

2012 U.S. Dist. LEXIS 177738, at *14-15 (S.D. Ohio Dec. 14, 2012)
(“Here, the subpoenas are directed to Plaintiff’s prior employers.
Thus, only Plaintiff’s prior employers have standing to challenge the
subpoenas on the ground that production of the subpoenaed documents
would pose an undue burden expense.”); McNaughton-McKay, Elec. Co. v.
Linamar Corp., No. 09-cv-11165, 2010 U.S. Dist. LEXIS 59275, at *9-10
(E.D. Mich. June 15, 2010) (“Defendant [which was not the recipient of
the subpoena] does not have standing to argue that Chrysler’s
compliance with the subpoena will cause undue burden where Chrysler
has not objected to the subpoena on this ground.”).

Cf. Donahoo v.

Ohio Dep’t of Youth Servs., 211 F.R.D. 303, 306 (N.D. Ohio Mar. 1,
2002) (“The party to whom the subpoena is directed is the only party
with standing to oppose it.”).
Here, the moving defendants are not required to respond to the
subpoena; it is WOW which is the responding party.
13

WOW has not moved

to quash the subpoena, nor has it even suggested that responding to
the subpoena will impose an undue burden on it.

Moreover, plaintiff’s

representation that WOW has already produced subpoenaed information
regarding other Doe defendants is uncontroverted.

See Memo. in Opp.,

p. 6 (“In fact Wide Open West has not only represented that it will
respond to the subpoenas after giving its customers thirty days’
notice, it has actually responded by providing the information for
other John Doe Defendants as of 4/15/13.”).

Under these

circumstances, the moving defendants have not established that they
have standing because the subpoena imposes an undue burden on them.
c.

“Affected by” the subpoena

Finally, the moving defendants’ conclusory reference to Fed. R.
Civ. P. 45(c)(3)(B) does not confer standing on the moving defendants.
Motion, p. 2 (citing, without elaborating, that this subsection
“allows a person affected by, but not subject to, a subpoena to move
to quash to [sic] subpoena”).

To the extent that the moving

defendants’ reliance on this provision suggests that they are
“affected by” the subpoena because they have a personal or proprietary
interest or because the subpoena imposes an undue burden, those
arguments fail for the reasons discussed supra.

Similarly, to the

extent that the conclusory reference is based on alleged reputational
harm, see id., that assertion is without merit for the reasons
discussed infra.

Accordingly, the Court cannot conclude that the

moving defendants have standing to object to the subpoena or that the
subpoena imposes an undue burden on the moving defendants.

14

2.

Risk of extortion

Even if the moving defendants had standing to challenge the
subpoena, their arguments contesting production of the subpoenaed
information would nevertheless be unpersuasive.

For example, the

moving defendants contend that a subscriber is not necessarily
responsible for illegal downloads simply because that activity is
associated with a subscriber’s address:

Multiple individuals may use

a single IP address and any one of those users, other than the
subscriber, may have improperly downloaded protected information.
Reply, pp. 1-3.

The moving defendants therefore argue that some

courts (but not within this circuit) have recognized that “[t]his type
of fishing expedition [obtaining identity and contact information of
subscribers] leads to an extortion risk[.]”

Motion, p. 4 (citing VPR

Internationale v. Does 1-1017, No. 11-2068, 2011 U.S. Dist. LEXIS
64656, at *4 (C.D. Ill. Apr. 29, 2011)).

More specifically, the

moving defendants suggest that the prospect of public embarrassment
arising from disclosure of their identities pressures innocent Doe
defendants into settlements.

See Reply, pp. 3 (“This risk of false

positives gives rise to the potential for coercing unjust settlements
from innocent defendants such as individuals who want to avoid the
embarrassment of having their names publicly associated with
allegations of illegally downloading.”) (citing Digital Sin, Inc. v.
Does 1-176, 279 F.R.D. 239, 242 (S.D. N.Y. 2012)), 8-10, 19
(“Plaintiff may be merely seeking this contact information in order to
bother a list of IP address holders who are not reliably going to be
found infringers, with unfounded allegations and demands for
15

payment.”).
However, other than these generalized fears, the moving
defendants have offered no evidence (or even allegations) that the
plaintiff in this action has engaged in abusive litigation tactics.
Under these circumstances, the Court is not persuaded that imputing
such guilt to plaintiff and precluding the pursuit of this action is
appropriate.

See, e.g., Malibu Media, LLC v. Doe, 285 F.R.D. 273, 278

(S.D. N.Y. 2012) (“[N]one of the instances of improper litigation
tactics that have been brought to our attention involve plaintiff or
plaintiff’s counsel.

We are reluctant to prevent plaintiff from

proceeding with its case based only on a ‘guilt-by-association’
rationale.”).

The Court also notes that, unlike the allegations of

illegal downloads in other actions addressing coercive settlements,
cf. id, this litigation does not involve the alleged downloading of
pornography.

Moreover, even if this case did present a risk of public

embarrassment, the Doe defendants may take measures to protect
themselves.

See, e.g., Malibu Media, LLC v. Doe, 902 F. Supp. 2d 690

(E.D. Penn. 2012) (granting motions to proceed anonymously).
Additionally, should the Doe defendants later establish that
plaintiff’s claims have been vexatiously pursued or frivolous, or if
the Doe defendants prevail in this action, they may seek sanctions
and/or reimbursement for their costs and fees.

See Fed. R. Civ. P.

11; 28 U.S.C. § 1927; 17 U.S.C. § 505; Fed. R. Civ. P. 54.

For all

these reasons, the moving defendants’ motions to quash the subpoena
based on a generalized fear of extortion is not well-taken.

16

3.

Good cause

The moving defendants also argue that the Court should quash the
subpoena because it is not supported by good cause.

Motion, p. 10

(“Good cause exists to quash the subpoena served on Wide Open West to
compel the disclosure of the name, address, telephone number and email address of [the moving defendants].”); Reply, pp. 6-8 (arguing
that determining whether good cause exists to permit expedited
discovery requires a showing of good cause and citing to cases outside
this circuit for factors that the court must weigh), 19 (“Good cause
exists to quash the subpoena[.]”).

For example, the moving defendants

contend that the subpoenaed information does not establish that the
subscribers are the actual infringers.

Reply, pp. 6-8.

The moving defendants’ arguments are not well-taken.

As noted

supra, this Court previously concluded that plaintiff’s request for
expedited discovery was supported by good cause.

Order, Doc. No. 4

(citing Arista Records, LLC v. Does 1-15, 2007 WL 5254326, *2) (S.D.
Ohio May 17, 2007)).

See also Breaking Glass Pictures v. Does, No.

2:13-cv-389, 2013 U.S. Dist. LEXIS 88090 (S.D. Ohio June 24, 2013)
(finding good cause and permitting expedited discovery in copyright
infringement case in order to obtain the identity of each Doe
defendant).

To the extent that the moving defendants apparently ask

the Court to revisit this conclusion, they have offered nothing to
establish that the prior decision was erroneous.

For example, the

moving defendants argue at length that the mere identification of the
subscriber does not necessarily establish that the subscriber was the
person who illegally downloaded the copyrighted work.
17

Reply, pp. 6-8.

However, nothing in Rule 45 permits a court to quash a subpoena based
on “a general denial of liability.”

See, e.g., First Time Videos, LLC

v. Doe, 276 F.R.D. 241, 250 (N.D. Ill. 2011).
P. 45.

See also Fed. R. Civ.

Instead, arguments related to the merits of the allegations

are appropriately addressed in the context of a motion to dismiss or a
motion for summary judgment rather than on a motion to quash.

See,

e.g., First Time Videos, LLC, 276 F.R.D. at 250.
The moving defendants’ arguments related to privacy and abusive
litigation tactics, Reply, pp. 8-9, are likewise unavailing for the
reasons discussed supra.

Similarly, arguments that the subpoenaed

information is irrelevant because that information “cannot give you
the identity of the infringer[,]” Motion, p. 9, are not well-taken.
As this Court previously concluded, plaintiff cannot meet its service
obligation under Fed. R. Civ. P. 4 without the requested discovery.
Order, Doc. No. 4, pp. 1-2.

Moreover, Rule 26 authorizes broad

discovery, including discovery that “appears reasonably calculated to
lead to the discovery of admissible evidence.”
26(b)(1).

Fed. R. Civ. P.

Therefore, even if discovery later reveals that it was

someone other than the subscriber who violated plaintiff’s copyright,
the subpoenaed information (the subscriber’s contact information) is
likely to lead to the discovery of admissible information, i.e., the
identity of the actual infringer.

In short, the moving defendants’

request to quash the subpoena is without merit.
III. REQUESTS TO SEVER THE DOE DEFENDANTS
The moving defendants also ask the Court to sever the Doe
defendants, contending that joinder is improper under Fed. R. Civ. P.
18

20.

Motion, pp. 4-9; Reply, pp. 10-16.

Rule 20 permits persons to be

joined as defendants in one action if (1) “any right to relief is
asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences[,]” and (2) the claims against
the various defendants share a common question of law or fact.
R. Civ. P. 20(a)(2).

Fed.

“Under the Rules, the impulse is toward

entertaining the broadest possible scope of action consistent with
fairness to the parties; joinder of claims, parties and remedies is
strongly encouraged.”
715, 724 (1966).

United Mine Workers of Am. v. Gibbs, 383 U.S.

See also Brown v. Worthington Steel, 211 F.R.D. 320,

324 (S.D. Ohio 2002) (“Courts liberally permit joinder under Rule
20(a).”)

(citing United Mine Workers of Am., 383 U.S. at 724).

To

that end, courts in this circuit give the terms “transaction” and
“occurrence” a broad and liberal interpretation.

Lasa Per L'Industria

Del Marmo Societa Per Azioni v. Alexander, 414 F.2d 143, 147 (6th Cir.
1969). “The purpose of Rule 20(a) is to promote judicial economy and
trial convenience.”

Evans v. Midland Funding LLC, 574 F. Supp. 2d

808, 811 (S.D. Ohio 2008) (quoting Lee v. Dell Products, L.P., No.
3:06cv0001, 2006 U.S. Dist. LEXIS 75573, 2006 WL 2981301, *7 (M.D.
Tenn. Oct. 16, 2006) (internal quotation marks omitted)).
“However, even if the requirements of Rule 20 are met, a district
court nevertheless retains considerable discretion to sever defendants
if it finds that the objectives of the rule are not fostered, or that
joinder would result in prejudice, expense, or delay.”

Voltage

Pictures, LLC v. Does 1-43, No. 1:13CV465, 2013 U.S. Dist. LEXIS
19

63764, at *5 (N.D. Ohio May 3, 2013).

The Court shall address each of

the requirements under Rule 20(a)(2) in turn.
A.

Same Transaction or Series of Transactions

The moving defendants specifically argue that the mere
allegations that the Doe defendants acted as a “swarm” or participated
in BitTorrent technology is insufficient to establish that they
engaged in a single transaction or in a series of closely related
transactions under Rule 20.

Motion, pp. 4-8; Reply, pp. 10-17.

Both

parties acknowledge, see Memo. in Opp., p. 7; Reply, p. 10, and this
Court agrees, that federal courts within this circuit and across the
country5 are divided on whether or not membership in the same swarm
satisfies the joinder requirements under Rule 20.

See, e.g., Voltage

Pictures, LLC, 2013 U.S. Dist. LEXIS 63764, at *5-6 (collecting
cases); Patrick Collins, Inc., 2013 U.S. Dist. LEXIS 50674, at *12-14
(same); Third Degree Films, Inc. v. Doe, No. 12-cv-14106, 2013 U.S.
Dist. LEXIS 44131, at *17 (E.D. Mich. Mar. 18, 2013) (“In short, the
heart of this disagreement is whether the mere alleged participation
of a group of defendants in the same ‘swarm’ is, in itself, sufficient
to satisfy Rule 20(a)(2)'s ‘same transaction, occurrence, or series of
transactions or occurrences’ requirement, or if it instead simply
5
Even district courts within the same district in this circuit are split.
See, e.g., Voltage Pictures, LLC, 2013 U.S. Dist. LEXIS 63764, at *11-12
(permitting joinder); Night of the Templar, LLC v. Doe, No. 1:13-CV-396, 2013
U.S. Dist. LEXIS 51625, at *11 (N.D. Ohio Apr. 10, 2013) (severing claims
after finding that “participation in a specific swarm is too imprecise a
factor absent additional information relating to the alleged copyright
infringement to support joinder under Rule 20(a)”); Patrick Collins, Inc. v.
John Does 1-33, No. 4:12-cv-13309, 2013 U.S. Dist. LEXIS 50674 (E.D. Mich.
Feb. 27, 2013) (denying request to sever claims); Patrick Collins, Inc. v.
Doe, No. 11-cv-15231, 2012 U.S. Dist. LEXIS 40536, at *9-13 (E.D. Mich. Mar.
26, 2012) (finding that alleged participation in a swarm did not support
joinder under Rule 20).

20

shows that the defendants ‘committed the same type of violation in the
same way.’”) (quoting Next Phase Distrib., Inc. v. John Does 1-27, 284
F.R.D. 165, 168-69 (S.D.N.Y. 2012)).
Some courts severing claims in swarm cases have concluded that
simply participating in a swarm does not necessarily establish that
defendants participated in the same transaction or occurrence.

See,

e.g., Night of the Templar, LLC, 2013 U.S. Dist. LEXIS 51625, at *9-10
(“‘Merely alleging that the Doe defendants all used the same filesharing protocol, BitTorrent, to conduct copyright infringement of
Plaintiff’s film without any indication that they acted in concert
fails to satisfy the arising out of the . . . same series of
transactions or occurrences requirement.’”) (quoting Hard Drive Prod.,
Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1151 (N.D. Cal. 2011));
Patrick Collins, Inc. v. Doe, No. 11-cv-15231, 2012 U.S. Dist. LEXIS
40536, at *9-13 (E.D. Mich. Mar. 26, 2012) (“[T]he the court concludes
that simply alleging the use of BitTorrent technology, like earlier
P2P file sharing protocols, does not comport with the requirements
under Rule 20(a) for permissive joinder.”).

For example, unknown

defendants may access the swarm at different times.

Night of the

Templar, LLC, 2013 U.S. Dist. LEXIS 51625, at *10 (“Plaintiff’s IP
address exhibits indicate that Defendants accessed the swarm at
different times, on different days, using different BitTorrent
clients.

This suggests that Defendants were not wrapped up in a

single factual occurrence.”) (internal citations omitted); Patrick
Collins, Inc., 2012 U.S. Dist. LEXIS 40536, at *10 (“Each of the IP
addresses connected to the investigative server at different times and
21

dates to download a piece of the Work and there is no allegation that
any of the computers associated with the IP addresses downloaded or
uploaded pieces of the Work with each other.”).

Accessing a swarm at

different times suggests that computer users were not acting
simultaneously or in concert, which persuades some courts that the
actions of those users were not part of the same transaction or series
of transactions.

See, e.g., Patrick Collins, Inc., 2012 U.S. Dist.

LEXIS 40536, at *12 (“The absence of information concerning the number
of total users in the swarm, coupled with the BitTorrent protocol’s
ability to quickly share files further demonstrates that it is
implausible that any of the Doe defendants were simultaneously sharing
pieces of plaintiff’s Work”) (emphasis added); Patrick Collins, Inc.
v. Doe, No. 12-12596, 2012 U.S. Dist. LEXIS 187556, at *3-4 (E.D.
Mich. Aug. 28, 2012) (“This, combined with the fact that ‘its users
share files in relatively quick time frame, ranging anywhere from
fifteen minutes to a few hours,’ means that it is seemingly
implausible that any of the Doe defendants simultaneously shared
pieces of the Work with each other, and thus acted ‘in concert’
sufficient to grant permissive joinder under Rule 20(a).”) (emphasis
added).
Conversely, some courts have concluded that joinder under Rule 20
does not necessarily require simultaneous or concerted action.

See,

e.g., Patrick Collins Inc. v. John Does 1-28, No. 12-13670, 2013 U.S.
Dist. LEXIS 11349, at *21 (E.D. Mich. Jan. 29, 2013) (“Joinder under
the federal rules, however, does not require simultaneity — ‘concerted
action is not required for joinder.’”) (quoting Patrick Collins, Inc.
22

v. Doe, 282 F.R.D. 161, 168 (E.D. Mich. 2012)); Nucorp, Inc. v. Does
1-24, No. 2:11-CV-15222, 2012 U.S. Dist. LEXIS 187547, at *14 (E.D.
Mich. Oct. 18, 2012) (“[C] oncerted action is not a requirement for
joinder under Rule 20(a)(2).”) (emphasis in original); Patrick
Collins, Inc., 282 F.R.D. at 167 (“But, a concert of action is not
required since Plaintiff alleges a right to relief severally against
Defendants.”).

Instead, “[o]ther courts have permitted joinder, based

on the theory that the claims are ‘logically related,’ and that the
collaborative activity of the members of the swarm demonstrates that
they engaged in the same transaction or series of transactions.”
Voltage Pictures, LLC, 2013 U.S. Dist. LEXIS 63764, at *6 (collecting
cases).

See also Patrick Collins Inc. v. John Does 1-28, No. 12-

13670, 2013 U.S. Dist. LEXIS 11349, at *14-15 (E.D. Mich. Jan. 29,
2013) (“The ‘logical relationship’ test, in turn, ‘is satisfied if
there is substantial evidentiary overlap in the facts giving rise to
the cause of action against each defendant.

In other words, the

defendants’ allegedly infringing acts, which give rise to the
individual claims of infringement, must share an aggregate of
operative facts.’”) (quoting In re EMC Corp., 677 F.3d 1351, 1358
(Fed. Cir. 2012)).

In addition, at least one district court in this

circuit has concluded that allegations that defendants, inter alia,
used the same digital file satisfied Rule 20(a)(2)’s “same
transaction, occurrence, or series of transactions or occurrences”
requirement.

Third Degree Films v. Does 1-36, No. 11-CV-15200, 2012

U.S. Dist. LEXIS 87891, at *28-32 (E.D. Mich. May 29, 2012).

See also

Patrick Collins, Inc. v. John Does 1-33, No. 4:12-cv-13309, 2013 U.S.
23

Dist. LEXIS 50674 (E.D. Mich. Feb. 27, 2013) (recommending, inter
alia, that motions to sever be denied without prejudice where
defendants shared the same digital file in the same swarm).

Cf.

Voltage Pictures, LLC, 2013 U.S. Dist. LEXIS 63764, at *8-11 (finding
that allegations that unknown defendants participating in the same
swarm downloading the same motion picture was sufficient to support
permissive joinder at the preliminary stage).
In Third Degree Films, the district court noted that, by virtue
of uploading in a swarm, the unknown defendants helped pass on pieces
of the copyrighted work:
[E]ach defendant allegedly participated in the same swarm
for the same digital encoding of the Work and thereby
jointly contributed to the illegal distribution of the Work
to others. By undoubtedly uploading to other peers in the
swarm, which enabled those peers to upload to still other
peers, all 36 Doe Defendants jointly contributed to either
growing the swarm or maintaining its existence.
Id. at *27-28.

See also Voltage Pictures, LLC, 2013 U.S. Dist. LEXIS

63764, at *11 n.2 (“[E]ach [defendant] participated in the BitTorrent
swarm as an uploader (distributor) and downloader (copier) of the
illegally transferred file.”); Patrick Collins Inc., 2013 U.S. Dist.
LEXIS 11349, at *18-19 (“‘[I]t is difficult to see how the sharing and
downloading activity alleged in the Complaint — a series of
individuals connecting either directly with each other or as part of a
chain or ‘swarm’ of connectivity designed to illegally copy and share
the exact same copyrighted file —

could not constitute a 'series of

transactions or occurrences' for purposes of Rule 20(a).’”) (quoting
Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 244 (S.D.N.Y.2012))
(emphasis in original).

Although the court in Third Degree Films
24

acknowledged that future discovery might reveal that the plaintiff had
failed to satisfy the requirements for joinder under Rule 20(a)(2) or
that severance is appropriate, that court nevertheless concluded that
joinder was proper at the initial stages of the litigation.

Third

Degree Films, 2012 U.S. Dist. LEXIS 87891, at *29-33.
Here, the Complaint alleges that the Doe defendants used the
BitTorrent protocol to join together in a “swarm” in order to
illegally download copyrighted material.

Complaint, ¶ 5.

More

specifically, the Complaint alleges that the unidentified defendants
all violated the same law (17 U.S.C. § 101 et seq.) in the same series
of transactions (downloading and distributing the same file, Dawn
Rider) by using the same means (the BitTorrent protocol).
11.

Id. at ¶

According to plaintiff, “[t]he infringed work was included in one

file related to the torrent file; in other words, all of the
infringements alleged in this lawsuit arise from the exact same unique
copy of Plaintiff’s movie as evidenced by the cryptographic hash
value.”

Id.

The unknown defendants’ alleged wrongful acts occurred

in the same series of transactions or occurrences because each
defendant downloaded and/or distributed, or offered to distribute Dawn
Rider to other infringers on the network who in turn downloaded and/or
distributed this movie.

Id.

Plaintiff therefore believes that the

unidentified defendants “each conspired with other infringers on the
BitTorrent network to copy and/or distribute the Motion Picture,
either in the same transaction or occurrence or in a series of
transactions or occurrences.”

Id.

Construing the terms “transaction” and “occurrence” broadly, see
25

Lasa Per L'Industria Del Marmo Societa Per Azioni v. Alexander, 414
F.2d at 147, and keeping in mind that joinder is strongly encouraged,
see United Mine Workers of Am. v. Gibbs, 383 U.S. at 724, this Court
concludes that plaintiff has alleged facts sufficient to satisfy the
“same transaction, occurrence, or series of transactions or
occurrences” requirement at this preliminary stage of proceedings.
See, e.g., Third Degree Films, 2012 U.S. Dist. LEXIS 87891, at *29-33;
Patrick Collins, Inc. v. Doe, 286 F.R.D. 319, 321-22 (E.D. Mich.
2012).
B.

Common Question of Law or Fact

Rule 20 also requires that a plaintiff establish that claims
against all defendants share a common question of fact or law.
R. Civ. P. 20(a)(2)(B).

Fed.

Here, as discussed supra, plaintiff has

alleged that the Doe defendants (1) violated the same law (17 U.S.C. §
101 et seq.); (2) infringed plaintiff’s rights in Dawn Rider by using
the same digital file; and (3) used the same BitTorrent protocol.

The

Court concludes that these allegations, at this preliminary stage,
satisfy Rule 20(a)(2)(B).

See, e.g., Third Degree Films, 2012 U.S.

Dist. LEXIS 87891, at *13-14 (finding that the plaintiff had
adequately pled facts satisfying Rule 20(a)(2)(B) where plaintiff
alleged the same causes of action involving the same digital file and
the same investigation led to discovery of defendants’ IP addresses);
Patrick Collins, Inc. v. John Does 1-33, No. 4:12-cv-13309, 2013 U.S.
Dist. LEXIS 50674, at *11 (same); Patrick Collins, Inc. v. Doe, 286
F.R.D. at 322.

26

C.

Other Considerations

In addition to arguing that plaintiff has failed to satisfy the
requirements for joinder under Rule 20(a)(2), the moving defendants
apparently also ask this Court to sever the claims against the
defendants because of, inter alia, the “tremendous risk of creating
unfairness and denying individual justice to those sued” as well as
the risk of extortion.

See, e.g., Motion, p. 5; Reply, pp. 15, 17.

In reaching its decision to deny the moving defendants’ request to
sever, this Court is aware of these concerns, which have been echoed
in the decisions of other courts.

Cf. Night of the Templar, LLC v.

Doe, No. 1:13-CV-396, 2013 U.S. Dist. LEXIS 51625, at *5 (“Rather,
plaintiffs often seek to take advantage of the resources of federal
courts to force small, individual settlements.”); Third Degree Films,
Inc. v. Doe, No. 12-cv-14106, 2013 U.S. Dist. LEXIS 44131, at *36-44
(noting the risk of forced settlements and a plaintiff’s desire to
join defendants in order to avoid paying multiple filing fees).
However, as discussed supra, the law affords remedies should
defendants establish that plaintiff has engaged in abusive litigation
tactics or that plaintiff’s claims are frivolous.

See Fed. R. Civ. P.

11; 28 U.S.C. § 1927; 17 U.S.C. § 505; Fed. R. Civ. P. 54.

See also

Patrick Collins, Inc. v. John Does 1-33, No. 4:12-cv-13309, 2013 U.S.
Dist. LEXIS 50674, at *25-27 (declining to exercise discretionary
severance on the basis of general fears of forced settlement in the
absence of case-specific allegations of coercion).

In light of these

safeguards, the Court is not persuaded that its discretion is best
exercised in severing the claims at this stage of the proceedings.
27

Cf. Sojo Prod. Inc. v. Does 1-67, Nos. 3:12-CV-599, 3:12-CV-600, 3:12CV-601, 3:12-CV-602, 3:12-CV-603, 2013 U.S. Dist. LEXIS 58602, at *8
(E.D. Tenn. Apr. 24, 2013) (denying without prejudice request as
“premature.

The Court does not have information sufficient to gauge

the appropriateness of the joinder of the Defendants at this time, and
severing these claims at this early stage of litigation is likely to
cause delays and hinder disposition of these matters”).
WHEREUPON, defendant Doe No. 163’s Motion to Quash Subpoena and
Motion for Severance, Doc. No. 5 (“Doe No. 163’s Motion”) and
defendant Doe No. 189’s Motion to Quash Subpoena and Motion for
Severance, Doc. No. 6, are DENIED.

July 1, 2013

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

28