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Hard Drive Productions, Inc v. Does 1-1

August 13, 2012


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case was referred to me for full case management. Currently pending and ready for resolution are the following motions: 1) Motion to Quash or Modify Subpoena [#19]; 2) Motion to Quash . . . [#20]; 3) Defendant, [Name Withheld] Motion to Quash [#21]; 4) Motion to Quash and Motion to Dismiss [#22]; 5) Re-Filed Motion of NonParty to Quash and Vacate Subpoena, or in the Alternative, to Sever, Combined with Points and Authorities [#36]; 6) Pro Se Motion to Sever and to Quash Subpoena by Doe Defendant [#38]; 7) Motion for Protective Order [#40]; and 8) Motion for Protective Order [#42]. For the reasons stated below, all pending motions will be denied.


This is a "BitTorrent"*fn1 case in which the plaintiff, Hard Drive Productions, Inc., has filed a copyright infringement action against 1,495 "John Does." Complaint for Copyright Infringement [#1]. Plaintiff claims that these individuals illegally copied and distributed a movie titled "Amateur Allure-MaeLynn." Id. ¶ 3. Plaintiff does not know the identities of these individuals but does know the Internet Protocol ("IP") address assigned to each defendant by his Internet Service Provider ("ISP"). Id. ¶ 8.


I. Procedural History Regarding the Anonymity of the Movants On September 30, 2011, plaintiff sought expedited discovery in order to compel, through

the service of subpoenas, the ISPs to disclose the true identities of the Doe defendants.*fn2 On October 4, 2011, Judge Bates granted plaintiff's motion.*fn3 Less than one month later, however, on November 2, 2011, Judge Bates stayed his previous order allowing service of the subpoenas, in light of the filing of numerous motions to quash or modify the subpoena by Doe defendants.*fn4

By his Order of November 10, 2011, Judge Bates clarified that "[d]efendants [those individuals who would receive a copy of plaintiff's subpoena through their ISPs] wishing to file Motions to Quash (and/or Motions to Sever) do not need to follow the procedures in the Local Rules for filing under seal," and instead could "mail to the Clerk's Office a Motion the complies with . . . this Court's November 2, 2011 Order, as well as any applicable local rules other than those relating to filing sealed documents, and it will automatically be placed under seal."*fn5 On November 16, 2011, the case was referred to me.*fn6

Shortly thereafter, certain Doe defendants, represented by an attorney, filed motions to quash under seal.*fn7 Other Doe defendants also filed motions to quash, but identified themselves. This led me to explain, in my Order of December 21, 2011, that the movants could be divided into the following four categories: 1) movants who identified themselves by name and address; 2) movants who identified themselves by name and address but sought to proceed anonymously; 3) movants who identified themselves solely by their IP addresses; and 4) movants who only identified themselves as "John Doe." Order [#18] at 1-3.

As I further noted in that Order, I was, of course, "aware that certain Doe defendants have moved to quash the subpoena issued to their ISPs relying, justifiably, on the provision in Judge Bates' order that their motions would remain under seal even if they lost." [#18] at 2. I explained, however, that I had become convinced that no one should be permitted to proceed any further in this case without identifying himself or herself. Id. I then presented the movants with a choice: they could either permit their motions to be placed on the public docket or withdraw them. Id. To that end, I sent them a form to be filled out, wherein they could indicate their choice. Finally, I indicated that the movants who identified themselves only by their IP addresses or by calling themselves "John Doe" had to identify themselves in accordance with Rule 5.1 of the Local Rules before anything they filed would be received and made a part of the Court file.

Id. at 3.

Thereafter, this Court received motions to quash from persons who identified themselves and transmitted a completed form, indicating that they wished to have their identities disclosed. On January 30, 2012, however, the Electronic Frontier Foundation moved for leave to file, as amicus curiae, a motion to stay my order,*fn8 which had required the movants to identify themselves. That motion was directed not to me, but to Judge Bates and is yet unresolved.

II. Resolution of the Pending Motions

A. All Movants will be Granted Anonymity Pendente Lite Although I now wish to resolve all outstanding motions to quash, I appreciate that the legitimacy of my compelling the movants to identify themselves is still before Judge Bates. Therefore, solely as a courtesy to him and without retreating from my view that the movants cannot proceed anonymously, I will order the Clerk to place ...

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