Monday, June 30, 2014

Quashing a John Doe Subpoena To Protect Your Privacy?

Nope.  Malibu Media owns a library of adult films (and the associated copyrights) and sells access to its members for a monthly (or yearly) fee.  80,000 users per month access its films without paying using sites like BitTorrent.  So there is a fair amount of litigation throughout the federal courts where Malibu Media seeks recovery for copyright infringement.  Through its investigations, Malibu can find out the IP address of the alleged infringer, but needs to get to a person to figure out whom to sue.  So they sue John Doe, and file a motion asking for permission to serve a subpoena prior to the Rule 26(f) scheduling conference (as it's not possible to serve a defendant, let alone have a case management conference, if you don't know who the defendant is).  A plaintiff in such a circumstance must show good cause for issuing a subpoena.  Courts routinely find good cause exists when Plaintiff's makes:
(1) a prima facie showing of infringement,
(2) there is no other way to identify the Doe Defendant, and
(3) there is a risk an ISP will destroy its logs prior to the [Rule 26(f) conference].
quoting UMG Recording, Inc. v. Doe, Case No. 08-193 (N.D. Cal. Sept. 3, 2008).  Malibu met that standard here and received permission to serve the subpoena to the ISP.

John Doe anonymously filed a motion to quash the subpoena, arguing that: (1) the ISP can't identify the actual infringer, it can only identify whomever pays for the IP address; (2) such techniques by plaintiffs like Malibu are "Bad Investigation Techniques;" and (3) identifying the information allows "Plaintiff to Pursue Abusive Litigation."

The problem with these arguments was they did not deal with the means for quashing a subpoena spelled out in Rule 45, which requires a Court to quash a subpoena when the subpoena: (1) does not allow reasonable time to comply; (2) violates certain geographic restrictions; (3) requires disclosure of protected information; or (4) subjects the recipient to undue burden.  The Court is also permitted (but not required) to quash a subpoena: (1) to protect a person from disclosing a trade secret or other confidential information; or (2) to protect from the disclosure of an expert's opinion.

Here, John Doe's argument didn't fall into these exceptions so the Court could not (and did not) quash the subpoena.

Motion to quash subpoena, denied.
Malibu Media, LLC v. Doe, Case No. 2:14-CV-154 (M.D. Fla. June 24, 2014) (Mag. Mirando)

1 comment:

  1. Does ISP have an obligation to keep a log of IP address by law? Does ISP can withhold this log if the subscriber demands due to privacy reason?

    John Doe #.02