Working within the confines of the Stored Communications Act (“SCA”), plaintiffs have continued to seek information from Internet Service Providers (ISPs) from which they can identify individual end users associated with Internet Protocol (IP) addresses. Two recent decisions highlight the divergent positions that courts have taken with respect to such requests. In In re Bittorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765 (E.D.N.Y. May 1, 2012), Magistrate Judge Gary R. Brown quashed subpoenas directed at non-party ISPs. There, the plaintiffs sought, before the parties had completed their Rule 26(f) conference, to subpoena the non-party ISPs to obtain the names, addresses, home telephone numbers and email addresses of the subscribers corresponding to identified IP addresses that plaintiffs claimed had been used to download copyrighted material without authorization.
Under Federal Rule of Civil Procedure 26(d)(1), a party seeking discovery from any source before the Rule 26(f) conference must demonstrate good cause. To evaluate whether good cause exists, the court must weigh: (1) the concreteness of the plaintiff’s showing of a prima facie claim of actionable harm; (2) the specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) the need for the subpoenaed information to advance the claim; and (5) the objecting party’s expectation of privacy.
Magistrate Judge Brown found that while the plaintiffs could make a prima facie claim, they could not demonstrate that there was a reasonable likelihood that the requested discovery would lead to identifying information of the individuals who had downloaded the copyrighted material without authorization. He noted the widespread use of wireless routers and that multiple computers and multiple users can access the Internet from a single wireless router. Thus, while an IP address may lead to a particular wireless router, it does not establish a reasonable likelihood that it would lead to an individual who can be sued for copyright infringement. Magistrate Judge Brown further noted that “[m]ost, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of the subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.”
To ensure that the rights of all parties were protected, Magistrate Judge Brown decided to limit discovery to one John Doe defendant in each of the related actions, and that the remaining John Doe defendants should be dismissed without prejudice. With respect to the remaining John Doe defendants, the court held that the plaintiff was entitled to obtain only the name, address and Media Access Control address associated with a particular IP address.
By contrast, under almost identical facts, in Patrick Collins Inc. v. Does 1-39, 2012 WL 1432224 (D. Md. Apr. 24, 2012), Judge Alexander Williams Jr. denied defendants’ motion to quash plaintiff’s subpoena to certain ISPs. The plaintiff knew the IP address of each John Doe, but not his or her real name or address. Judge Williams granted plaintiff leave to file a thirdparty subpoena on the ISPs so that the plaintiff could discover the identity of the defendants. After receiving the subpoenas, the ISPs notified their subscribers. As a result, several John Does filed motions to quash the subpoena pursuant to Federal Rule of Civil Procedure 45(c) (3)(A)(iv) on the grounds of undue burden and harassment. In denying the motions to quash, the court found the defendants’ arguments unavailing because identification was necessary for the plaintiff to enforce his copyrights. Further, Judge Williams found that such subpoenas do not unduly burden the defendants because the “subpoena is directed toward the ISPs and not the Doe Defendants.”
To further highlight the divergent approaches employed by district courts, in Special Markets Insurance Consultants Inc. v. Lynch, 2012 WL 1565348 (N.D. Ill. May 2, 2012), Magistrate Judge Geraldine Soat Brown quashed the third-party subpoenas served on Verizon Wireless and Yahoo. In doing so, Magistrate Judge Brown found that: (1) the civil defendants had standing to quash the subpoenas; (2) the subpoenas were improper under the Stored Communications Act; and (3) the subpoenas were overly broad.
At the outset, the Court found that the defendants had standing to quash the subpoena under Federal Rule of Civil Procedure 45(c)(3) which grants “a person” unduly burdened by a subpoena standing to quash it. Magistrate Judge Brown found that the phrase “a person” is not limited to the person receiving the subpoena. She also found that the defendants had standing under Federal Rule of Civil Procedure 26(c)(1), which allows the court to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Magistrate Judge Brown ultimately held that the subpoenas violated the SCA, which prohibits electronic communication services from divulging “to any person or entity the contents of a communication while in electronic storage by that service ….”
But even if the subpoenas had not violated the SCA, Magistrate Judge Brown would have granted a motion for a protective order because she held that the subpoenas were “grossly overbroad” and not “reasonably calculated” to lead to the discovery of admissible evidence.