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Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v. Does 1 - 4

September 10, 2010


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Plaintiff Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. is the owner of the copyright of the motion picture "Far Cry." Plaintiff brought this suit for copyright infringement against John Does 1- 4,577, individuals who allegedly illegally downloaded and distributed "Far Cry" over the Internet. When the suit was filed, Plaintiff did not know the names of the alleged infringers, but had identified the Internet Protocol ("IP") addresses of the computers associated with the infringement. In order to discover the actual names of the Doe Defendants in this case, Plaintiff subpoenaed the Internet Service Providers who provide service to the identified IP addresses, and the Providers gave notice to their customers of the subpoena. Certain individuals who received such notices have moved to quash the subpoena. As explained below, the motions to quash will be denied as these individuals have no cognizable claim of privacy in their subscriber information.


Plaintiff has identified the IP address and the date and time of each alleged copyright infringement. Those IP addresses are attached to the Amended Complaint as Exhibit A. See Dkt. # 12. In order to actually identify the Doe Defendants, Plaintiff sought leave of court to serve a subpoena under Federal Rule of Civil Procedure 45 on Internet Service Providers who keep the names and addresses of their customers associated with IP addresses in the regular course of business. See Mot. for Discovery [Dkt. # 3]; Mem. in Supp. of Mot. [Dkt. # 4]. The Court granted such leave, permitting Plaintiff to serve "discovery on Internet Service Providers listed in the Complaint to obtain the identity of each John Doe Defendant by serving a Rule 45 subpoena that seeks information sufficient to identify each Defendant, including name, current (and permanent) addresses, telephone numbers, email addresses and Media Access Control addresses." Order [Dkt. # 6] at 1. Later, the Court specified the type of notice that Internet Service Providers were required to provide to their customers. See Pl.'s Proposed Court-Directed Notice from ISP's to Doe Defs. [Dkt. #36] ("Court-Directed Notice"); Minute Order July 22, 2010 (adopting Plaintiff's proposed notice). The notice to be provided to customers indicates:

If you are receiving this notice, that means the Plaintiffs*fn1 have asked your Internet Service Provider to disclose your identification information to them, including your name, current (and permanent) addresses, and your email address and Media Access Control number. Enclosed is a copy of the subpoena seeking your information and the exhibit page containing the IP address that has been associated with your computer and showing the date and time you are alleged to have used the Internet to download or upload the particular movie.

Court-Directed Notice at 1.

Upon receiving notice of the subpoenas from their Internet Service Providers, the following individuals filed motions to quash: Randy Ansell [Dkt. # 15], William Wright [Dkt. # 20], and Elise Buel [Dkt. # 21]. Further, one John Doe filed a motion to quash under seal, so as to conceal his identifying information. See Doe's Mot. to Quash [Dkt. # 35].


A person served with a subpoena may move for a protective order under Federal Rule of Civil Procedure 26(c). Under Rule 26(c), a court may "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" upon a showing of good cause. Fed. R. Civ. P. 26(c). In determining whether a discovery request is oppressive or imposes an undue burden, a court must balance the party's need for the discovery against the potential hardship to the subject of the subpoena. Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998). To determine whether there is an "undue burden," a court examines "relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed." Flatow v. Islamic Republic of Iran, 196 F.R.D. 203, 206 (D.D.C. 2000), vacated in part and affirmed in part on other grounds, 305 F.3d 1249 (D.C. Cir. 2002).

Alternatively, a person served with a subpoena may move to quash or modify the subpoena under Federal Rule of Civil Procedure 45(c)(3). As is relevant here, Rule 45(c)(3)(iii) provides that a court may quash a subpoena if it "requires disclosure of privileged or other protected matter, if no exception or waiver applies." Fed. R. Civ. P. 45(c)(3)(iii). Pursuant to Rule 45(d)(2), when subpoenaed information is withheld based on a claim of privilege, the claim of privilege must "describe the nature of the withheld [information] in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim." Fed. R. Civ. P. 45(d)(2). Rule 45(e) further provides that failure to obey a subpoena without an adequate excuse may be deemed a contempt of court.

The burden of persuasion on a motion for protective order or to quash is borne by the movant. See Aristotle Int'l, Inc. v. NGP Software, Inc., Civ. No. 05-1700, 2010 WL 2134285, at *13 (D.D.C. Mar. 10, 2010) (motion for protective order); Linder v. Dep't of Defense, 133 F.3d 17, 24 (D.C. Cir. 1998) (motion to quash).


The movants, Mssrs. Ansell, Wright, and Doe and Ms. Buel, do not request a protective order, and no such order is called for here. Plaintiff's need for the identifying information is great as the information is critical to the prosecution of this lawsuit. The burden imposed on the movants is slight. In sum, the subpoena is not oppressive and does not impose an undue burden on these movants.

Movants have requested that the Court quash the subpoenas. Mr. Anselm moves to quash without providing any reason to do so. See Anselm's Mot. to Quash [Dkt. # 15] at 1. Mr. Wright moves to quash, impliedly asserting ...

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