Opinion
Case No.: 12-4102 YGR (JSC)
01-11-2013
AXEL BRAUN, Plaintiff, v. PRIMARY DISTRIBUTOR DOE NUMBER 1 AND DEFENDANT DOES 2 THROUGH 155, Defendants.
ORDER DENYING MOTION TO QUASH OR MODIFY SUBPOENA
(Dkt. No. 9)
Plaintiff Axel Braun ("Braun") sued 155 Doe Defendants for copyright infringement. After receiving an order from the Court, Plaintiff served subpoenas on several Internet Service Providers ("ISPs"), seeking identifying information about certain subscribers who, according to Plaintiff's allegations, used their Internet access to violate Plaintiff's copyright. One of the subscribers, without identifying him, her, or itself, either with a name or Internet Protocol ("IP") address, but instead, as "Doe No. 5" has filed a Motion to Quash or Modify Subpoena ("Motion"). (Dkt. No. 9.) For the reasons explained below, Defendant's Motion is DENIED.
BACKGROUND
Plaintiff is an individual doing business as Axel Braun Productions, which produces adult entertainment products. (Dkt. No. 1 at ¶¶ 9-10.) Plaintiff is the co-producer and co-claimant of the copyright for the contested motion picture: Star Wars XXX: A Porn Parody (the "Motion Picture"). (Dkt. No. 1 at ¶ 32.) This film was registered by Plaintiff with the Copyright Office and assigned the registration number PA 1-787-699. (Dkt. No. 1 at ¶ 32.)
Plaintiff alleges that Primary Distributor Doe Number One and Does Two through One Hundred and Fifty Five (collectively "Defendants") used BitTorrent, an Internet peer-to-peer ("P2P") file sharing network, to illegally reproduce and distribute Plaintiff's copyrighted work in violation of the Copyright Act, 17 U.S.C. § 101 et seq. (Dkt. No. 1 at ¶¶ 33-34.) Plaintiff further alleges that by using the BitTorrent program to download and distribute Plaintiff's content, Primary Distributor Doe Number One engaged in contributory infringement, and all Defendants are jointly and severally liable for Plaintiff's injuries. (Dkt. No. 1 at ¶¶ 44-45.)
Plaintiff retained the services of Media Protector International GmbH ("MPI"), a technology company that specializes in P2P content detection and user identification to locate infringing copies of Plaintiff's works on P2P networks. (Dkt. No. 5-1 at ¶ 2.) MPI identified and documented the internet protocol ("IP") addresses from which individuals connected to the Internet, as well as the date and time the individuals used the IP addresses to share files on the P2P network. (Dkt. No. 5-1 at ¶ 16.) Because the Defendants' conduct occurred behind the mask of their anonymous IP addresses, Plaintiff could not identify the Defendants without leave to subpoena Defendants' ISPs for the identity of the individual or entity related to each IP address. Plaintiff thus filed an ex parte Application for Leave to Take Early Discovery ("Application") with this Court on September 15, 2012, pursuant to Rule 26(d). Plaintiff sought leave to serve Rule 45 third-party subpoenas on the Does 1-155's ISPs so as to uncover the identities of the Doe Defendants. (Dkt. No. 5.)
This Court granted Plaintiff's Application on October 23, 2012, finding that there was good cause in permitting early discovery to uncover the identities of the Doe Defendants (Dkt. No. 7.) The order gave the ISPs 20 days from the date of service upon it to serve Does 1-155 with a copy of the subpoena and a copy of the order. Does 1-155 had 30 days from the date of service upon him, her, or it, to file any motions in this Court contesting the subpoena.
Following Plaintiff's service of subpoenas seeking subscriber information on the various ISPs, Defendant Doe No. 5 anonymously filed the underlying Motion and seeks to prevent his, her, or its identity from being revealed in this suit. (Dkt. No. 9.)
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a party may discover any matter relevant to a claim or defense. Fed. R. Civ. P. 26(b)(1). Relevance for discovery purposes is extremely broad and "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Nevertheless, there are circumstances in which a court issuing the subpoena must or may modify or quash a subpoena.
First, the issuing court must modify or quash the subpoena when a timely motion is filed and the subpoena does not allow reasonable time to comply, requires a non-party nor a party's officer to travel more than 100 miles, requires disclosure of privileged or other protected matter, or subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A). Second, the issuing court may modify or quash when the subpoena requires disclosure of a trade secret or other confidential information, disclosure of an unretained expert's opinion or information that does not describe disputed occurrences and results from a study not requested by a party, or if a non-party will have to incur substantial expense to travel more than 100 miles to attend trial. Fed. R. Civ. P. 45(c)(3)(B).
Further, upon a motion for a protective order and a showing of good cause, the court may limit the scope of discovery "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c). The party or person seeking to limit its disclosures through a protective order has the burden of showing good cause. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). The burden cannot be met by conclusory statements, but it must make a particular and specific need for a protective order. Methode Electronics, Inc. v. Finisar Corp., 205 F.R.D. 552, 554 (N.D. Cal. 2001). Finally, even where "good cause" is established, a court should balance the interests in allowing discovery against the relative burdens that would be imposed. Hard Drive Productions, Inc. v. Does 1-118, No. 11-01567, 2011 WL 5416193, at *2 (N.D. Cal. Nov. 8, 2011) (citing Wood v. McEwen, 644 F.2d 797, 801-02 (9th Cir. 1981)).
DISCUSSION
Doe No. 5 challenges Plaintiff's subpoena based on improper joinder. Defendant argues that the 155 Doe Defendants in this action are improperly joined because joinder is based on entirely disparate alleged acts; Defendant also contends joinder creates a risk of unfairness and denies individual justice as to the Doe Defendants.
Defendant has not established that quashing is warranted. The subpoena at issue does not meet any of the circumstances described in Rule 45(c)(3)(A) or (B). The subpoena did no allow for an unreasonable time to comply, require a non-party to travel more than 100 miles, require disclosure of privileged or other protected matter, or subject the Doe Defendants to undue burden. Further, the information subpoenaed is not a trade secret or otherwise confidential in nature and is not an unretained expert's opinion, and finally, none of the Doe Defendants are required to travel under this subpoena. The subpoena is a production of documents from the Doe Defendants' respective ISPs that would sufficiently identify the Doe Defendants in this action. Thus, the Motion does not set forth a reason by which this Court should quash or modify the subpoena at issue. Fed. R. Civ. P. 45(c)(3)(A);(B).
Further, the sole basis Defendant offers for challenging the subpoenas - improper joinder - was already considered by this Court. In granting Plaintiff leave to take early discovery, this Court concluded that the Plaintiff made a prima facie showing that the Doe Defendants are properly joined. (Dkt. No. 7.) To the extent that any of the Defendants here contend that joinder is improper, they can move to sever, but it is not a proper basis for a motion to quash or modify the subpoena under Rule 45(c)(3). Fed. R. Civ. P. 45(c)(3).
While federal courts can liberally recharacterize a pro se litigant's motion, the Court in this instance will not recharacterize the Defendant's Motion as a motion to sever. See Castro v. United States, 540 U.S. 375, 381-84 (2003) (stating that federal courts should be liberal in its construction of a pro se litigant's motion, and may even "ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category."). Even if this Court were to recharacterize the Motion as a motion to sever, the issue of joinder has been considered and determined to be proper at the pleading stage. --------
The Court is not persuaded by those BitTorrent cases in which a court quashed a subpoena based on improper joinder. In Hard Drive Productions, Inc. v. Does 1-188, the court severed and dismissed all defendants except one based on improper joinder; the court then quashed the subpoenas because the defendants had been dismissed. Hard Drive Productions, Inc. v. Does 1-188, 809 F.Supp.2d 1150, 1163-64 (N.D. Cal. 2011). Here, in contrast, this Court considered whether joinder was proper before it granted the order for early discovery. As the Court declines to reconsider its joinder determination at this time, there is no basis for quashing the subpoena. See New Sensations, Inc. v. Does 1-1745, No. 10-5863, 2011 WL 2837610, at *2 (N.D. Cal. Jul. 18, 2011) (denying motion to quash subpoena based on improper joinder where court had previously considered joinder in connection with the motion for early discovery).
The Court might find, as the case progresses, that the Doe Defendants are improperly joined; however, at this stage in the litigation, the Court declines to revisit its determination that joinder is proper. As the motion to quash was based entirely on the improper joinder argument, the motion must be denied.
CONCLUSION
For the reasons explained above, Defendant's Motion to Quash or Modify the Subpoena is DENIED. (Dkt. No. 9.)
As the moving Doe Defendant is unrepresented, Defendant may contact the Federal Legal Assistance Self-Help Center, 280 South First Street, 4th Floor, Room 4093 and 4095, San Jose California, (408) 297-1480 (telephone) for assistance regarding his/her claim.
IT IS SO ORDERED. Dated: January 11, 2013
/s/_________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE