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Sunlust Pictures, LLC v. Does 1-75

August 27, 2012

SUNLUST PICTURES, LLC, PLAINTIFF,
v.
DOES 1-75, DEFENDANTS.



The opinion of the court was delivered by: Judge John J. Tharp

MEMORANDUM OPINION AND ORDER

Anonymous defendant, identified by the Internet Protocol ("IP") address 67.165.158.8 (herein referred to as "Doe"), moves to quash the portion of a subpoena directing Comcast Cable Holding Companies, LLC ("Comcast") to provide Doe's personal identifying information, and to enter an order severing Doe as a defendant in this matter. For the reasons stated below, Doe's motion is denied, except that the Court orders Comcast not to turn over Doe's telephone number. However, Doe is granted leave to proceed in this litigation under a pseudonym, and Plaintiff Sunlust Pictures, LLC ("Sunlust") is ordered not to use Doe's real name in any amended complaint or in any other public filing or communication without prior leave of Court.

I.Background

Sunlust is a producer of "adult entertainment content"-i.e., pornography. Sunlust has filed suit against 75 "John Doe" defendants, alleging copyright infringement and civil conspiracy. Sunlust alleges that the defendants unlawfully downloaded and shared Sunlust's copyrighted work (specifically, a video entitled "Sunny Leone -- Goddess" (the "Video")), using the BitTorrent file sharing protocol. According to the complaint, "BitTorrent protocol involves breaking a single large file into many small pieces, which can be transferred much more quickly than a single large file and in turn redistributed much more quickly than a single large file." Cmplt. ¶ 17.

BitTorrent operates as follows (see generally Cmplt. ¶¶ 18-19): First, a user seeking to download a copy of a particular file locates on the internet and downloads a small "torrent" file, which is a file that contains information about particular content files available for download. The torrent file determines how the distribution of those content files will work and provides information about the "tracker" computer that will coordinate the distribution of pieces of the content file among users of the torrent (who are referred to as "peers"). Next, the user loads the torrent file into the "BitTorrent client" (a computer program that manages downloads and uploads using BitTorrent protocol), which automatically attempts to connect to the tracker listed in the torrent file. Id. The tracker responds with a list of peers and the BitTorrent client connects to those peers to begin downloading content file data from, and distributing data to, other peers. A group of peers who have downloaded the same torrent file and who are participating in the same BitTorrent client to download and upload the content file is known as a "swarm." When the download is complete for a given member of the swarm, the BitTorrent client continues distributing data from that user's computer to other peers in the swarm until the user manually disconnects from the swarm or the BitTorrent client otherwise does the same.

Sunlust alleges that each of the 75 John Doe defendants intentionally downloaded the torrent file particular to the Video, purposefully loaded that torrent file into their BitTorrent clients, entered into the same BitTorrent swarm particular to the Video, and reproduced and distributed the Video among themselves and to numerous third parties.

Sunlust further alleges that its "agents observed unlawful reproduction and distribution [of the Video] occurring among the IP addresses" assigned to the 75 Doe defendants. Cmplt. ¶ 4. Sunlust alleges upon information and belief that the defendants continue to act in concert via BitTorrent to illegally reproduce and distribute the Video.

Currently, Sunlust has named each John Doe defendant only by his or her IP address. Plaintiff has subpoenaed Comcast and other internet service providers for information identifying the owner of each IP address, pursuant to this Court's March 14, 2012, order granting Sunlust leave to take discovery.

Doe moves to quash the portion of a subpoena Plaintiff has issued to Comcast seeking information that would identify him,*fn1 and also for severance from the lawsuit based on improper joinder. In support of his motion, Doe submitted an affidavit stating that he did not download or view any portion of the Video, nor does he have any knowledge of the identity of the person who allegedly downloaded the Video. Doe denies participating in a BitTorrent swarm, and claims to have been travelling to the airport at the time that his or IP address was allegedly used to participate in illegal activity.

II.Discussion

Doe bases his argument in support of quashing the subpoena entirely upon his argument that Sunlust's joinder of 75 participants in a BitTorrent swarm is improper. He should be severed from the case, he argues, and severance would necessarily deprive Sunlust of any basis to seek his personal identifying information from Comcast.

A.Motion to Quash

Sunlust alleges that Doe lacks standing to bring a motion to quash a subpoena directed to Comcast, a nonparty. It argues that when a subpoena is directed to a nonparty, any motion to quash must generally be brought by that nonparty. Sunlust claims that "[t]he only exception to this general rule applicable here is a claim of privilege." Doc. 37 at 2. However, even a cursory review of the case law Sunlust cited reveals a second exception to the general rule for instances where, as here, the subpoena implicates a party's privacy interests. See, e.g., Hard Drive Productions, Inc. v. Does 1-48, No. 11-9062, 2012 WL 2196038, *3 (N.D. Ill. June 14, 2002) ("Generally, a party lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege attached to the information sought or unless it implicates a party's privacy interests.") (emphasis added). Courts have found standing in similar cases, even where the Movant's privacy interest is "minimal at best." Malibu Media, LLC v. Does 1-25, No. 12-362, 2012 WL 2367555, *2 (S.D. Cal. June 21, 2012). Because Doe has at least a minimal privacy interest in the information requested by subpoena, he has standing to object. See Third Degree Films, Inc. v. Does 1-108, No. 11-3007, 2012 WL 669055, *2 (D. Md. Feb. 28, 2012) ("however minimal or 'exceedingly small' the Doe Defendants' interests here are, parties need only have 'some personal right or privilege in the information sought' to have standing to challenge a subpoena to a third party").

Though Doe has standing, he has not articulated any basis for quashing the subpoena independent of his arguments related to joinder. A court must quash a subpoena if, inter alia, it requires disclosure of privileged or other protected matter (and no exception or waiver applies), or compliance with the subpoena would place an undue burden on the recipient. Fed. R. Civ. P. 45(c)(3)(A). In similar cases, anonymous defendants have argued that subpoenas should be quashed because they imposed an undue burden and because the defendant has denied liability. See, e.g. Third Degree Films, 2012 WL 669055,at *3-4. However, these arguments do not provide a basis to quash a subpoena and courts consistently reject them. The subpoena does not impose an undue burden on Doe because he is not the party directed to respond to it. See id. at *3; Hard Drive Productions, 2012 WL 2196038 at *3 ("the subpoenas do not burden [the anonymous defendant] ...


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