United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
Before the Court is Defendant Doe 39's Motion to Quash. For the reasons stated herein, the Motion is denied.
On July 24, 2013, Plaintiff Site B, LLC ("Site B") filed this action against 51 "John Doe" Defendants ("Defendants"), alleging copyright infringement in violation of the United States Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. Site B develops and produces motion pictures. In its Complaint, Site B alleges that the Defendants used BitTorrent, a software protocol that facilitates large data transfers across peer-to-peer networks, to reproduce and distribute unlawfully Site B's copyrighted motion picture entitled "Under the Bed."
In order to share data over BitTorrent, an initial file-provider (in tech parlance, the "seeder") first must upload ("seed") a file to the torrent network. Other users ("peers") then connect to the seed file to download it. As peers download the seed file, they also transmit pieces of that file automatically to subsequent downloaders for as long as they remain connected to BitTorrent. Every peer who downloads the file receives a different piece of the file from every user that has already downloaded it. The group of peers and seeders uploading and downloading the same file is called a "swarm."
Site B alleges that each of the Defendants downloaded and uploaded "Under the Bed" in the same swarm at various times between April 19 and May 28, 2013. According to Site B, the Defendants participated deliberately in the same swarm for the purpose of "reproducing, exchanging and distributing copyrighted material unique to the swarm." (Compl. ¶ 14, ECF No. 1). Site B also claims that Defendants engaged in the same transaction, occurrence, or series of transactions or occurrences by participating in the same swarm.
Site B only knows each Defendant by his or her Internet Protocol address ("IP address"), a unique numerical code that Internet Service Providers ("ISPs") assign to each computer and device connected to the Internet. On September 4, 2013, Site B served subpoenas on the Defendants' ISPs seeking identifying information for each Defendant, including their names, addresses, telephone numbers, email addresses, and Media Access Control addresses. Defendant Doe 39 ("Doe 39") has moved to quash the subpoena duces tecum that Site B served on his ISP, Comcast Cable Holdings, LLC ("Comcast").
II. LEGAL STANDARD
A court must quash or modify a subpoena that either (1) fails to allow a reasonable time to comply, (2) requires a person to comply beyond the geographical limits specified in FED. R. CIV. P. 45(c), (3) requires disclosure of privileged or other protected matter, if no exception or waiver applies, or (4) subjects a person to undue burden. FED. R. CIV. P. 45(d)(3)(A). A court also may quash or modify a subpoena that seeks commercial research or information, or materials from an unretained expert witness. FED. R. CIV. P. 45(d)(3)(B). The party seeking to quash bears the burden of demonstrating that the subpoena at issue falls within the Rule 45 criteria. Malibu Media, LLC v. John Does 1-6, No. 12 C 08903, 2013 U.S. Dist. LEXIS 71857, at *14 (N.D. Ill. May 17, 2013).
Doe 39 seeks to quash the Comcast subpoena on two grounds: first, that Doe 39 is misjoined, and second, that the subpoena violates the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 et seq. ("ECPA"), as modified by the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. ("SCA").
1. Quashing the Subpoena is an Improper Remedy for Misjoinder
At the outset, the Court notes that it is questionable whether Doe 39 has standing to object to the subpoena Site B served on Comcast. "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." Kessel v. Cook Cnty., No. 00 C 3980, 2002 U.S. Dist. LEXIS 4185, at *5 (N.D. Ill. Mar. 14, 2002) (quotations omitted). District courts in this Circuit have disagreed over whether an anonymous defendant accused of copyright infringement has standing to object to a ...