The Bicycle Peddler v. Does 1-99, Case No. 13-2375, Slip. Op. (N.D. Ill. Aug. 13, 2013)(Gottshcall)
This is yet another case where numerous Does filed motions to quash subpoenas issued to their ISPs – and, following recent precedent, all of the motions were denied.
In this case, Does filed motions to quash based on the following circumstances:
• Doe (# unknown) moves to quash the subpoena issued to his/her ISP, Comcast, on the ground that it would violate his/her right to privacy. (Motion to Quash, ECF No. 22.)
• Doe (# unknown) moves to quash the subpoena, arguing that he was admitted to the hospital at the time of the alleged downloading of copyrighted material. (Motion to Quash, ECF No. 24.)
• Does 19 and 23 move to quash the subpoena because an IP address does not identify an individual infringing downloader, and to sever and dismiss Does 19 and 23 from the action because joinder is improper under Federal Rule of Civil Procedure 20(a)(2) when defendants did not participate in a BitTorrent swarm simultaneously. (Motion to Quash, ECF No. 26.)
• Doe (believed to be Doe 85) moves to quash because he does not reside in this district and would have to travel more than 100 miles to appear in this court, and because, he contends, he did not make the download in question. (Motion to Quash, ECF Nos. 27, 28, 34, 35.)
• Doe (# unknown) moves to quash because the use of an IP address does not accurately identify an infringer, the subpoena would violate his or her privacy, and joinder is improper under Rule 20. (Motion to Quash, ECF No. 30.)
To start, the Court did not rule on whether the various Does even had standing to object – a number of rulings in the Northern District of Illinois have determined that Does do not have standing to object. Second, the Court disposed of the argument that an IP address only identifies a household rather than an infringer:
[E]ven if defendants have standing, there is no merit to the challenge to the subpoenas. [The] argument that the subpoena should be quashed because the information sought will not itself identify the actual infringer demonstrates a lack of understanding of the basic scope of discovery under the federal rules. “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1). . . . Even if the customer associated with the IP address is not necessarily the person who illegally download[ed] plaintiff’s software, the customer’s name is the first step in identifying the proper defendant.
The Court other motions as denials of liability, which is not a proper reason to quash a subpoena.
Finally, the Court turned to the motion to sever, and denied that as well. In doing so, the Court cited recent decisions by Judge Tharp and Judge Castillo in determining that joinder is appropriate even if the Does did not share data with each other, and with no requirement of temporal proximity. The Court also denied discretionary severance on the grounds that at least some efficiency is gained by having the Does in the same suit.
It is likely that the Does information has already been turned over to the Bicycle Peddler’s counsel, who are likely receiving phone calls already.
If you are identified by your ISP as a Doe Defendant in a file sharing lawsuit, you may want to review this article, which contains some helpful tips on how to deal with these kinds of suits:
Atty Ad: The Law Offices of Konrad Sherinian, LLC with offices in Naperville and Chicago, has successfully defended numerous file sharing cases alleging the use of Bit Torrent to copy movies, music, software and other content other the Internet. Call (630) 318-2606 or (312) 981-5004 today for a free consultation if you have received a subpoena letter from your ISP.