Worldwide Film Entertainment, LLC v. Does 1 - 749 ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WORLDWIDE FILM
ENTERTAINMENT, LLC,
Plaintiff, Civil Action No. 10-0038
HHK/DAR
v.
DOES 1-749,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending for determination by the undersigned is the Motion to Quash Subpoena filed by
“Comcast File #: 1552298” (“Motion to Quash Subpoena”) (Document No. 6). Upon
consideration of the motion, Plaintiff’s Opposition to Motions to Quash Subpoena (“Plaintiff’s
Opposition”) (Document No. 11) and the entire record herein, said motion will be denied.
BACKGROUND
On January 8, 2010, Plaintiff brought this action for damages and injunctive relief for
alleged copyright infringement. Complaint (Document No. 1), ¶ 1. Plaintiff states that it is a
creator and distributor of motion pictures, including “The Gray Man[.]” Id., ¶ 6. Plaintiff alleges
that 749 unidentified defendants, “[t]he true names of [which] are unknown to Plaintiff at this
time[,]” infringed its exclusive rights under copyright law by “copying and distributing to others
over the Internet unauthorized copies of [said] motion picture[.]” Id., ¶¶ 6, 8, 12. Plaintiff
Worldwide Film Entertainment, LLC v. Does 1-749 2
submits that each defendant is now known to Plaintiff “only by the Internet Protocol (“IP”)
address assigned to that Defendant by his or her Internet Service Provider [“ISP”] on the date and
at the time at which the infringing activity of each Defendant was observed.” Id., ¶ 8. Plaintiff
states that “information obtained in discovery will lead to the identification of each Defendant’s
true name and permit the Plaintiff to amend this Complaint to state the same.” Id.
On January 17, 2010, Plaintiff filed a Motion for Leave to Take Discovery Prior to the
Rule 26(f) Conference (Document No. 3). By said motion, Plaintiff sought leave of the court to
serve discovery through the issuance of subpoenas pursuant to Federal Rule of Civil Procedure
45 on the ISPs which provided internet access to each defendant in order to determine the
defendants’ identities. See Plaintiff’s Memorandum of Points and Authorities in Support of
Motion for Leave to Take Discovery Prior to Rule 26(f) Conference (Document No. 3) at 6-7.
On January 26, 2010, the court granted the motion, and provided, inter alia, that Plaintiff “may
[immediately] serve [a Rule 45 subpoena] [on] any ISP identified by the same means detailed in
the Declarations and Motion, or identified as providing network access or online services to one
or more Doe Defendants,” for “information sufficient to identify each Doe Defendant[.]” See
Order (Document No. 5) at 1-2.
Six of the individuals or entities whose identifying information was sought by subpoena
served upon an ISP have filed a motion in this civil action to quash the subpoena.1 The first such
motion was filed by an individual or entity which identifies himself, herself or itself as
“Defendant Comcast File #: 152298[.]” By said motion, the movant seeks to quash the subpoena
served on Comcast Cable Communications for the movant’s name, address, e-mail address and
1
A seventh motion was filed in Miscellaneous Action No. 10-0171.
Worldwide Film Entertainment, LLC v. Does 1-749 3
Media Access Control Address. Motion to Quash Subpoena at 1.
Movant offers four grounds in support of the motion: (1) Plaintiff has not “sufficiently
identified . . . Comcast File #: 1332298” as “the person or persons responsible for the alleged
infringement”; (2) movant has not had “exclusive use, possession or control” of the IP address
identified; (3) movant did not engage in the alleged infringing activity, and (4) the information
requested is “confidential information provided to [Comcast] for the exclusive [purpose] of
obtaining Comcast’s cable services.” Motion to Quash Subpoena at 1.
Plaintiff, in its opposition, submits that the motion to quash is “procedurally defective[,]”
and that the movant has not provided justification for the relief requested. Plaintiff’s Opposition
at 2-5.
DISCUSSION
Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure provides, in pertinent part, that
on timely motion, the court must quash or modify a subpoena that “(i) fails to allow reasonable
time to comply; . . . (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(c)(3)(A)(i), (ii), (iii). Additionally, Rule 45(c)(3)(B) provides, in pertinent part, that a court
may quash or modify a subpoena “if it requires . . . disclosing a trade secret or other confidential
research, development, or commercial information[.]” Fed. R. Civ. P. 45(c)(3)(B)(i).2
2
Comcast has not moved to quash or modify the subpoena, or otherwise object to it. The undersigned assumes, for the
purposes of this motion, that the individual or entity whose subscriber information was the subject of the subpoena has standing
to move to quash it. Cf. Covad Communications Co. v. Revonet, Inc., No. 09-MC-102, 2009 WL 3739278, at *3 (D.S.D. Nov. 4,
2009) (while “[o]rdinarily a party does not have standing to object to a subpoena served on a non-party, . . . a party does have
standing to object to a subpoena served upon a non-party which requires the production of privileged information.”) (citation
omitted).
Worldwide Film Entertainment, LLC v. Does 1-749 4
The undersigned finds that movant has failed to demonstrate that the subpoena served
upon Comcast must be quashed or modified in accordance with Rule 45(c)(3)(A), or that the
court should exercise its discretion to do so in accordance with Rule 45(c)(3)(B). The first three
of the four grounds offered by movant comprise movant’s denial of the alleged infringement.
Motion to Quash Subpoena at 1. However, as this court has previously determined, such “factual
and technical arguments . . . are unrelated to any appropriate inquiry associated with a motion to
quash.” Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 8 (D.D.C. April 28, 2008); see
also Fonovisa, Inc. v. Does 1-19, No. 07-1515, 2008 WL 919701, at *8 (W.D.Pa. April 3, 2008)
(holding that if the individual or entity whose identifying information was sought by a subpoena
served on an ISP “believes that it has been improperly identified by the ISP, [the individual or
entity] may raise, at the appropriate time, any and all defenses, and may seek discovery in support
of its defenses.”).
In the fourth ground offered by movant in support of the motion, movant maintains that
the “information requested is confidential information[.]” Motion to Quash Subpoena at 1.
However, courts have previously held that subscribers do not have a claim of confidentiality in
their subscriber information. Guest v. Leis, 255 F.3d 325, 335-336 (6th Cir. 2001) (“computer
users do not have a legitimate expectation of privacy in their subscriber information because they
have conveyed it to another person-the system operator[]”) (citations omitted); see also United
States v. Kennedy, 81 F. Supp. 2d 1103, 1100 (D.Kan. 2000) (a defendant cannot claim a
“privacy interest in his subscriber information” where he has “entered into an agreement with . . .
[an] Internet service . . . [provider]”); United States v. Hambrick, No. 99-4793, 2000 WL
1062039, at *4 (4th Cir. Aug. 3, 2000) (“a person does not have an interest in account
Worldwide Film Entertainment, LLC v. Does 1-749 5
information given to the ISP in order to establish an email-account . . .”) (citations omitted).3
CONCLUSION
For all of the foregoing reasons, the undersigned finds that “Comcast File #: 1552298”
has failed to establish a basis to quash the subpoena under Rule 45. Accordingly, it is, this 13th
day of May, 2010,
ORDERED that the Motion to Quash Subpoena filed by Comcast File #: 1552298
(Document No. 6) is hereby DENIED.
_______/s/______________
DEBORAH A. ROBINSON
United States Magistrate Judge
3
Plaintiff does not suggest that the requested information involves a trade secret, or any confidential research,
development or commercial material. See Fed. R. Civ. P. 45(c)(3)(B)(i)