Breaking Glass Pictures v. Does 1-283

Filing 29

MEMORANDUM AND ORDER denying 7 Motion to Quash; denying 10 Motion to Quash; denying 11 Motion to Quash; denying 13 Motion to Quash; denying 14 Motion to Quash; denying 18 Motion to Quash. (c/m to Ellen Hughey, Anisha T. DeArmond and Christopher Phelps)Signed by Magistrate Judge H Bruce Guyton on 06/13/2013. (KAW)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
BREAKING GLASS PICTURES,
Plaintiff,
v.
DOES 1-283,
Defendants.

)
)
)
)
)
)
)
)
)

No. 3:13-CV-75
(PHILLIPS/GUYTON)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02 to address pending motions to quash, to which the Plaintiff have
objected.
Plaintiff alleges that the putative Defendants used BitTorrent protocol to download
various motions pictures in violation of Plaintiffs’ copyrights. The undersigned entered an Order
in this case permitting the Plaintiff to take limited discovery prior to conducting a discovery
conference under Rule 26(f) of the Federal Rules of Civil Procedure. The Court authorized
limited, early discovery to allow the Plaintiff to ascertain the identities of Defendants, who were
only known by their Internet Protocol (“IP”) addresses. Specifically, the Court granted Plaintiff
leave to subpoena the name, address, and phone number of the persons or entities who used the
IP addresses associated with the alleged infringement. The instant motions followed.

Pursuant to Rule 45, a court must quash a subpoena that: “fails to allow a reasonable time
to comply”; “requires a person who is neither a party nor a party’s officer to travel more than 100
miles from where that person resides, is employed, or regularly transacts business . . .”; “requires
disclosure of privileged or other protected matter, if no exception or waiver applies”; or “subjects
a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A). A court may quash a subpoena that
requires: disclosing a trade secret or similar confidential information; disclosing an unretained
expert’s opinion; or “a person who is neither a party nor a party’s officer to incur substantial
expense to travel more than 100 miles to attend trial.” Fed. R. Civ. P. 45(c)(3)(B).
The subpoenas in this case commanded production of “the name, address, and phone
number of the persons or entities,” who used the IP addresses listed in the subpoena. These
subpoenas were served upon Internet Service Providers (“ISP”), such as Charter
Communications. As an initial matter, the Court finds that the subpoenas at issue do not require
travel that is in excess of 100 miles. The Court further finds that the subpoenas do not call for
disclosing an unretained expert’s opinion, nor do they command disclosure of a trade secret or
similar information.
With regard to the burden of production, the Court finds, first, that the subpoenas are not
directed toward the Defendants, who filed the instant motions. There is no burden of production
on these persons, and “if anyone may move to quash these subpoenas on the basis of undue
burden, it is the ISPs themselves, as they are compelled to produce information under the
subpoena.” First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241 (N.D. Ill. 2011). The ISPs
have not moved to quash based upon an undue burden, and the Court finds that the Defendants
have no basis for arguing that an undue burden has been imposed upon them.

2

The Court finds that the only basis on which the Defendants could potentially quash the
subpoenas is by arguing that the subpoenas require production of privileges or protected matters.
“The Sixth Circuit has observed that ‘[o]rdinarily, 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.’” Johnson v. Guards Mark Sec.,
No. 4:04 CV 2447, 2007 WL 1023309, at *1 (N.D. Ohio Mar.31, 2007) (quoting Mann v. Univ.
of Cincinnati, Nos. 95–3195, 95–3292, 1997 WL 280188, at *4 (6th Cir. May 27, 1997)). “The
only basis upon which a party could have standing to quash a non-party subpoena would be a
claim or personal right or privilege.” Waite, Schneider, Bayless & Chesley Co. L.P.A. v. Davis,
2013 WL 146362, at *5 (S.D. Ohio Jan. 14, 2013) (citing Hackmann v. Auto Owners, Ins. Co.,
2009 WL 330314 (S.D. Ohio Feb.6, 2009); Donahoo v. Ohio Dept. Of Youth Services, 211
F.R.D. 303, 306 (N.D. Ohio 2002).
The Court, however, finds that the subpoenas do not seek information in which the
Defendants have a privilege or other privacy interest. The Court finds the thorough analysis of
this issue in First Time Videos v. Does 1-500, 276 F.R.D. 241 (N.D. Ill. 2011), to be particularly
persuasive. The court in First Time Videos was presented with facts almost identical to those
before this Court and found that “the identifying information subpoenaed neither qualifies for
protection as ‘privileged’ nor is otherwise protected under the First Amendment right to engage
in anonymous speech on the Internet.” Id. at 247.
The putative Defendants have not cited the Court to any privilege – e.g. attorney-client,
doctor-patient – that protects a person’s name, address, or phone number from disclosure.
Moreover, “courts have consistently held that Internet subscribers do not have a reasonable
expectation of privacy in their subscriber information – including name, address, phone number,

3

and email address – as they have already conveyed such information to their ISPs.” Id. (citing
Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577, 736 F.Supp.2d 212 (D.D.C.
2010)). Because the putative Defendants have already shared the information sought in the
subpoena with the ISP for purposes of setting up their internet subscription, the Court finds that
this basic information is neither privileged nor protected.
With regard to the United States Constitution, the Court finds that the subpoenas do not
infringe upon a right to anonymous speech because anonymous speech does not enjoy absolute
protection under the First Amendment to the Constitution. “Indeed, copyright infringement is
not protected by the First Amendment.” First Time Videos, 276 F.R.D. at 248 (citing Harper &
Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985); Arista Records v. Does 1–19,
551 F.Supp.2d 1, 9 (D.D.C. 2008)). Any First Amendment right to remain anonymous “must
give way to plaintiffs’ right to use the judicial process to pursue what appear to be meritorious
copy right infringement claims.” Arista Records, 551 F.Supp.2d at 9. The Court, therefore,
finds that the subpoenas cannot be quashed based upon a right or privilege under the First
Amendment to the Constitution.
Accordingly, and after reviewing each of the Motions to Quash, the Court finds that the
Defendants have not established any privilege in or right to protect their names, addresses, and
phone numbers.
To the extent the parties have argued innocence in their motions to quash, the Court finds
that there is no basis for quashing a subpoena under Rule 45 based upon a general denial of
liability. See First Time Videos, 276 F.R.D. at 250. “A general denial of liability is not relevant
as to the validity or enforceability of a subpoena, but rather should be presented and contested
once parties are brought properly into the suit.” Id. The putative Defendants may deny their

4

liability once served with process in this case through appropriate pleadings, motions, or
evidence at trial. A motion to quash is not the forum for addressing general denials of liability.
Based upon the foregoing, the Court finds that the Motions to Quash [Docs. 7, 10, 11, 13,
14, 18] are not well-taken, and they are DENIED.
IT IS SO ORDERED.
ENTER:
s/ H. Bruce Guyton
United States Magistrate Judge

5