Some Hope For Quashing Copyright Infringement Subpoenas

Mass defendant copyright infringement cases are not rare these days. Many movie studios (particularly adult entertainment companies) find it economical to attach a long list of John Doe defendants to their copyright infringement lawsuits. The procedure is typically the same. The company joins a bunch of Doe defendants, subpoenas the internet service provider(s) (ISP) to obtain the names, current and permanent addresses, telephone numbers, email addressees, and Media Access Control addresses (“MAC addresses”) of the Doe Defendants, some Doe Defendants may move to quash the subpoena, and a Doe may either fight it out in court or settle the claim pre-trial.

I have defended quite a few individuals who have been accused of copyright infringement. A common question that I receive is whether or not a motion to quash the subpoena to the ISP should be filed. I have written about these motions in the past. Today, I will address it again and shed some light as to why the motion to quash may find success in court.

Under Rule 45(c)(3) of the Federal Rules of Civil Procedure, a court must modify or quash a subpoena that, inter alia, “requires disclosure of privileged or other protected matter, if no exception or waiver applies, or subjects a person to undue burden.”

Furthermore, Rule 26(c)(1) provides:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending … The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including … forbidding the disclosure or discovery.

Fed.R.Civ.P. 26(c)(1). The court also must:

limit the frequency or extent of discovery otherwise allowed by [the Federal Rules of Civil Procedure] or by local rule if it determines that … the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues.

I have seen motions to quash subpoenas work when courts found that the joinder of Doe Defendants in an action was improper under Rule 20 (Permissive Joinder of Parties) of the Federal Rules of Evidence. Case law exists, which states that use of BitTorrent to allegedly download and share the copyrighted material is not sufficient for a Plaintiff to satisfy the requirements of Rule 20(a), even if the Doe defendants are part of a single swarm. Courts have held permissive joinder of certain Doe Defendants to be improper based on a finding that the copyright infringement claims did not arise out of the same transaction, occurrence or series of transactions or occurrences. Merely committing the same type of violation in the same way does not necessarily link defendants together for purposes of joinder.

Not all courts will adopt this interpretation and not all lawsuits are filed in a fashion where a motion to quash a subpoena will work under the guise of improper joinder. That is why it is important to hire competent counsel if you receive a letter explaining that your ISP has been subpoenaed to provide your personal information and that a lawsuit has been or may be filed against you.