UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WEST COAST PRODUCTIONS, INC.,
Plaintiff,
v. Civil Action No. 11–57 (CKK)
JOHN DOES 1-5829,
Defendants.
MEMORANDUM OPINION
(June 10, 2011)
Plaintiff West Coast Productions, Inc. filed the Complaint in this action on January 10,
2011 against 5829 “John Doe” Defendants alleging that Defendants unlawfully downloaded
and/or distributed Plaintiff’s copyrighted film using the BitTorrent internet file-sharing protocol.
The Defendants are identified in the Complaint by the internet protocol (“IP”) address they used
to allegedly share Plaintiff’s copyrighted work at a particular date and time. On February 3,
2011, the Court granted Plaintiff’s Motion for Leave to Take Discovery Prior to Rule 26(f)
Conference, enabling Plaintiff to serve subpoenas on various internet service providers (“ISPs”)
for the purpose of obtaining information to identify the John Doe Defendants. Pursuant to the
Court’s order permitting such discovery, ISPs that are served with such subpoenas must give
notice to their subscribers before turning over their contact information. In turn, many of the
putative John Doe Defendants whose contact information has been subpoenaed by Plaintiff have
filed or attempted to file motions with this Court seeking to quash these subpoenas and prevent
the ISPs from turning over their contact information. These motions present the Court with
myriad legal issues, and the Court ordered Plaintiff to file a legal brief responding to these
motions. Plaintiff filed its brief on June 3, 2011, and the Court now issues this Memorandum
Opinion to resolve the issues raised by these motions.
For the reasons explained below, the Court finds that the movants’ privacy interest in
their identifying information does not outweigh Plaintiff’s need to obtain such information to
pursue its copyright claims. Therefore, the Court finds that there is no basis to quash or modify
the subpoenas based on the movants’ alleged privacy interests or to allow the movants to proceed
anonymously. Furthermore, the Court finds that until Plaintiff has named and served the
defendants in this action, it is premature to evaluate the movants’ assertions that this Court lacks
personal jurisdiction over them. The Court further finds that based on the allegations in the
Complaint, Plaintiff has satisfied the requirements for permissive joinder of the John Doe
Defendants in this action. The Court further finds that the movants lack standing to assert other
procedural objections to the subpoenas served on ISPs. Accordingly, the Court shall deny the
various motions to quash or for protective orders relating to the subpoenas served by Plaintiff and
the alternative motions to dismiss or sever accompanying those motions. The Court shall also
deny the motions filed by movants seeking to proceed anonymously and instruct the Clerk of the
Court not to accept such motions for filing.
DISCUSSION
The motions that have been filed by the putative John Doe Defendants in this action raise
a series of legal issues that must be addressed by the Court. First, the Court must determine
whether to permit these movants to proceed anonymously in seeking to quash the subpoenas
served by Plaintiff or dismiss the claims against them. Second, the Court must determine
whether there is any basis to quash a subpoena seeking the identity of a John Doe Defendant. In
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making this determination, the Court must also determine whether any of the movants can raise
the defense of lack of personal jurisdiction before they have been named in the Complaint. The
Court must also consider whether the John Doe Defendants have been improperly joined in this
action. The Court shall address these issues below.
A. The Right of John Doe Defendants to Proceed Anonymously
Because Plaintiff has served subpoenas seeking to learn the identities of the various John
Doe Defendants, most John Doe Defendants who have filed motions to quash the subpoenas
have sought to do so anonymously. However, both the Federal Rules of Civil Procedure and the
Local Civil Rules require that persons filing papers in this Court identify themselves in their
papers. See Fed. R. Civ. P. 11(a) (“Every pleading, written motion, and other paper must be
signed by at least one attorney of record in the attorney’s name—or by a party personally if the
party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone
number.”); LCvR 5.1(e)(1) (“The first filing by or on behalf of a party shall have in the caption
the name and full residence address of the party.”). “[P]arties to a lawsuit must typically openly
identify themselves in their pleadings to protect the public’s legitimate interest in knowing all the
facts involved, including the identities of the parties.” United States v. Microsoft Corp., 56 F.3d
1448, 1463 (D.C. Cir. 1995) (internal quotation marks and citation omitted). The public has a
common law right of access to judicial records, see Nixon v. Warner Commc’ns, Inc., 435 U.S.
589, 597-98 (1978), and allowing a party to litigate anonymously undermines that public right.
Accordingly, federal courts generally allow parties to proceed anonymously only under certain
special circumstances when anonymity is necessary to protect a person from harassment, injury,
ridicule, or personal embarrassment. Does I Through XXIII v. Advanced Textile Corp., 214 F.3d
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1058, 1067-68 (9th Cir. 2000); accord S. Methodist Univ. Ass’n of Women Law Students v.
Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir. 1979) (“Where the issues involved are matters of
a sensitive and highly personal nature, such as birth control, abortion, homosexuality or the
welfare rights of illegitimate children or abandoned families, the normal practice of disclosing
the parties’ identities yields to a policy of protecting privacy in a very private matter.”) (internal
quotation marks and citations omitted).
In determining whether to grant the “rare dispensation” of anonymity to a litigant, the
Court must take into account the risk of unfairness to the opposing party as well as the general
presumption of openness in judicial proceedings. Microsoft, 56 F.3d at 1464. Other relevant
factors to be considered by the Court include whether identification creates a risk of retaliatory
physical or mental harm, whether anonymity is necessary to preserve privacy in a matter of
sensitive and highly personal nature, and whether the anonymous party may be compelled to
admit his or her intention to engage in illegal conduct, creating a risk of criminal prosecution.
Advanced Textile Corp., 214 F.3d at 1068. In this case, the movants seek to proceed
anonymously in order to prevent Plaintiff from obtaining the contact information that they
previously provided to their ISPs. Moreover, they are doing so in order to avoid being targeted
for allegedly infringing Plaintiff’s copyrighted film. Courts within this district have uniformly
held that the privacy interest in such identifying information is minimal and not significant
enough to warrant the special dispensation of anonymous filing. See Call of the Wild Movie,
LLC v. Does 1-1,062, Civil Action No. 10-455, slip op. at 6-7 (D.D.C. Feb. 24, 2011) (Howell,
J.); Donkeyball Movie, LLC v. Does 1-171, Case No. 10-cv-1520 (D.D.C. Jan. 14, 2011)
(Sullivan, J.); Maverick Entm’t Grp., Inc. v. Does 1-4,350, Civil Case No. 10-569 (D.D.C. Nov.
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24, 2010) (Leon, J.); Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. Does 1-4,577, 736 F.
Supp. 2d 212, 216 (D.D.C. 2010) (Collyer, J.) (“With regard to Mr. Doe’s assertion that the
information sought is ‘personal,’ courts have held that Internet subscribers do not have an
expectation of privacy in their subscriber information as they already have conveyed such
information to their Internet Service Providers.”). This Court agrees that this matter is not among
the limited class of cases in which anonymous filing is necessary to protect the privacy interests
of the putative defendants.
Accordingly, the Court shall deny the movants’ requests to proceed anonymously in this
action and direct the Clerk of the Court not to docket any motions filed by litigants who seek to
proceed anonymously. Because some movants have provided their contact information to the
Court under seal and may wish to proceed with their motions notwithstanding the Court’s ruling,
the Court shall address the merits of the motions to quash that are now pending before the Court.
B. Motions to Quash Subpoenas
The movants seeking to quash the subpoenas requesting their contact information from
ISPs have presented a variety of arguments in support of their motions. Federal Rule of Civil
Procedure 45 provides that on timely motion, the issuing court must quash or modify a subpoena
that, inter alia, “requires disclosure of privileged or other protected matter, if no exception or
waiver applies,” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3). A substantial
number of the movants claim that they have no knowledge of the alleged infringing activity, or
that someone else downloaded and/or distributed Plaintiff’s copyrighted film using their IP
address, possibly through an unsecured wireless network connection. However, objections such
as these are essentially irrelevant and premature because they go to the merits of Plaintiff’s
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claims and do not address the propriety vel non of the subpoenas. The Court has authorized
Plaintiff to serve subpoenas on ISPs for the purpose of identifying the individuals associated with
the IP addresses that were allegedly used to infringe Plaintiff’s copyright. Whether these
individuals are actually liable is a contested issue of fact that remains to be litigated, and
movants’ protestations of innocence do not give the Court a proper basis to quash or modify the
subpoenas seeking their contact information.
Many movants have also argued that their internet activity is protected by the First
Amendment and/or their constitutional right to privacy, and therefore their identifying
information should not be turned over by their ISP as demanded by the subpoenas. However, as
this Court has previously noted, “courts have routinely held that a defendant’s First Amendment
privacy interests are exceedingly small where the ‘speech’ [at issue] is the alleged infringement
of copyrights.” Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 8-9 (D.D.C. 2008)
(citations omitted). Accordingly, this Court has held that where, as here, a plaintiff has made a
prima facie claim of copyright infringement, the plaintiff’s need for disclosure outweighs any
First Amendment privacy interests that may be at stake. See id.; accord Call of the Wild Movie,
LLC v. Does 1-1,062, Civil Action No. 10-455, 2011 WL 996786, at *15 (D.D.C. Mar. 22,
2011); Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 567 (S.D.N.Y. 2004)
(“[D]efendants’ First Amendment right to remain anonymous must give way to plaintiffs’ right
to use the judicial process to pursue what appear to be meritorious copyright infringement
claims.”). Therefore, the Court declines to quash the subpoenas on the basis of any asserted
privacy rights by the internet subscribers.
In addition to these arguments, many movants have objected to the subpoenas on the
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grounds that they have no contacts with the District of Columbia and therefore this Court lacks
personal jurisdiction over them. Many movants have also objected on the grounds that Plaintiff
has improperly joined them as defendants in this action. Finally, several movants have raised
other objections to the subpoenas on procedural grounds. The Court shall address these issues
below.
1. Motions to Quash or Dismiss Based on a Lack of Personal Jurisdiction
Many of the movants seek to quash the subpoenas seeking their contact information or,
alternatively, dismissal of claims asserted against them in the Complaint, on the ground that they
have no contacts with the forum jurisdiction and therefore this Court lacks personal jurisdiction
over them. Because the Court will be unable to exercise personal jurisdiction over them, these
movants argue, there is no basis for authorizing discovery of their contact information through a
subpoena. Many movants also argue that the claims against them should be dismissed because
the Complaint fails to allege any facts connecting them to the District of Columbia. However,
these arguments are based on a misunderstanding of the nature of personal jurisdiction and the
manner in which courts exercise it.
Lack of personal jurisdiction is a threshold defense that is waived unless a defendant
raises it in an answer or pre-answer motion. Fed. R. Civ. P. 12(b), (h)(1). Accordingly, the
plaintiff is not required to plead the basis for personal jurisdiction over any defendant in the
complaint. Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474 (D. Del. 1995). Once a
defendant raises the defense of lack of personal jurisdiction, “the general rule is that a plaintiff
must make a prima facie showing of the pertinent jurisdictional facts.” First Chicago Int’l v.
United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). To meet this burden, the plaintiff will
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normally be afforded the opportunity to engage in discovery relating to jurisdictional facts. See
GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000) (“[I]f a
party demonstrates that it can supplement its jurisdictional allegations through discovery, then
jurisdictional discovery is justified.”). “Therefore, before the complaint has been served and a
response received, the court is not positioned to determine conclusively whether personal
jurisdiction exists.” Anger v. Revco Drug Co., 791 F.2d 956, 958 (D.C. Cir. 1986) (per curiam).
Plaintiff has yet to formally identify any of the John Doe Defendants named in the
Complaint or serve them with process. Although the movants generally assume that they will be
named as defendants once their contact information is turned over to Plaintiff by their ISP, the
Court cannot automatically draw that conclusion. If, as many movants have asserted, their
internet accounts were used by third parties to unlawfully infringe Plaintiff’s copyrighted film,
then it is those third parties, rather than the movants themselves, who should properly be named
as defendants. Until Plaintiff formally names and serves each defendant, the Court cannot be
certain whether any of the movants will be compelled to defend this action as parties. Therefore,
it is premature to evaluate their jurisdictional defenses. Furthermore, even assuming that the
movants will ultimately be named as defendants, they will have the opportunity to assert their
jurisdictional defenses once they are served with process, either in their answers or in pre-answer
motions to dismiss. Until that time, the Court finds their arguments to be premature. Other
courts have reached a similar conclusion based on the unavailability of jurisdictional discovery to
the plaintiff. See, e.g., Call of the Wild Movie, 2011 WL 996786 at *8-10 (“[A]t this juncture
when no putative defendant has been named, the Court has limited information to assess whether
any putative defendant has a viable defense of lack of personal jurisdiction or to evaluate
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possible alternate bases to establish jurisdiction); London-Sire Records, Inc. v. Doe 1, 542 F.
Supp. 2d 153, 180-81 (D. Mass. 2008) (denying motion to quash for lack of personal jurisdiction
filed by Jane Doe defendant because jurisdictional discovery might establish a basis for
jurisdiction); Sony Music Entm’t, 326 F. Supp. 2d at 567-68 (concluding that it would be
premature to determine that personal jurisdiction is lacking before the defendant had been
identified).
Therefore, the Court shall deny movants’ motions to quash and alternative motions to
dismiss based on an alleged lack of personal jurisdiction.
2. Misjoinder of John Doe Defendants
Many movants have argued that the subpoenas should be quashed because Plaintiff has
improperly joined all 5829 John Doe Defendants into a single action. Some movants have asked
in the alternative that the Court sever them from this action as a remedy for the improper joinder.
Permissive joinder is governed by Federal Rule of Civil Procedure 20, which provides in relevant
part:
Persons . . . may be joined in one action as defendants if: (A) any right to relief is
asserted against them jointly, severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
Fed. R. Civ. P. 20(a)(2). Misjoinder of parties is not a ground for dismissing an action. Fed. R.
Civ. P. 21. “On motion or on its own, the court may at any time, on just terms, add or drop a
party. The court may also sever any claim against a party.” Id. The purpose of Rule 20 is “to
promote trial convenience and expedite the final resolution of disputes, thereby preventing
multiple lawsuits, extra expense to the parties, and loss of time to the court as well as the litigants
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appearing before it.” M.K. v. Tenet, 216 F.R.D. 133, 137 (D.D.C. 2002). “[T]he two prongs of
Rule 20(a) are to be liberally construed in the interest of convenience and judicial economy . . . in
a manner that will secure the just, speedy, and inexpensive determination of the action.”
Davidson v. District of Columbia, 736 F. Supp. 2d 115, 119 (D.D.C. 2010) (citations and
alterations omitted).
Here, the movants contend that the claims against the John Doe Defendants are misjoined
because they do not arise out of the same transaction, occurrence, or series of transactions or
occurrences. In determining whether claims are part of the same transaction, occurrence, or
series of transactions and occurrences, the Court asks whether the claims are logically related.
See Disparte v. Corp. Exec. Bd., 223 F.R.D. 7, 10 & n.6 (D.D.C. 2004) (citing cases). The
movants argue that each John Doe’s alleged infringing activity is separate and distinct from the
alleged infringing activity of every other John Doe Defendant, and therefore Plaintiff must bring
a separate action against each John Doe Defendant rather than join all 5829 defendants into a
single lawsuit. However, the movants give short shrift to the allegations in the Complaint.
Plaintiff alleges that each John Doe Defendant participated in a single “swarm” of BitTorrent
users in which Plaintiff’s copyrighted film was unlawfully shared, downloaded, and distributed.
See Compl. ¶ 17. Plaintiff alleges that the BitTorrent protocol allows users in the “swarm” to
download and upload from each other simultaneously. Id. ¶ 18. Therefore, Plaintiff has alleged
that the John Doe Defendants were sharing Plaintiff’s copyrighted film with one another via the
BitTorrent protocol. As Judge Beryl A. Howell recently explained in a similar case, “[e]ach
putative defendant is a possible source for the plaintiffs’ motion pictures, and may be responsible
for distributing the motion pictures to the other putative defendants, who are also using the same
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file-sharing protocol to copy the identical copyrighted material.” See Call of the Wild Movie,
2011 WL 996786, at *5. The Court finds that these allegations are sufficient to satisfy the first
prong of the test for permissive joinder. The second prong of the test, common questions of law
or fact, is easily met because the claims asserted against each John Doe Defendant are identical.
At this stage of the litigation, it is sufficient that the claims as alleged in the Complaint
meet the requirements of Rule 20 for permissive joinder. The joinder of these claims promotes
judicial efficiency by consolidating the claims into a single action for coordinated discovery and
pretrial management. Although the Court may need to reconsider whether joinder is proper once
individual defendants have been named and entered appearances in this action, the Court sees no
prejudice to the parties at this time by allowing Plaintiff to proceed against all defendants in a
single action. Accordingly, the Court declines to sever any of the defendants or quash the
subpoenas on the ground that the John Doe Defendants have been misjoined.
3. Other Procedural Defects in the Subpoenas
Several of the movants have raised other procedural objections to the subpoenas. For
example, some movants have claimed that the subpoenas fail to allow a reasonable time to
comply, and others have argued that the subpoenas impose an undue burden. Some of these
objections appear to be based on the mistaken belief that the subpoena is directed at the movants
personally, rather than the ISPs who were served with the subpoenas. To date, none of the ISPs
have asked the Court to modify or quash the subpoenas served by Plaintiff, and the ISPs are the
proper parties to be filing such a motion. “A motion to quash, or for a protective order, should
generally be made by the person from whom the documents or things are requested.”
Washington v. Thurgood Marshall Academy, 230 F.R.D. 18, 21 (D.D.C. 2005) (quoting 9A
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Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2459 (2d ed. 1995)).
“A party generally lacks standing to challenge a subpoena issued to a third party absent a claim of
privilege, propriety interest, or personal interest in the subpoenaed matter.” Id.; accord Windsor
v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997) (“The general rule is that a party has no
standing to quash a subpoena served upon a third party, except as to claims of privilege relating
to the documents being sought.”).
Here, the Court has already addressed the movants’ claims that they have a privacy
interest in their identifying information that should be protected from disclosure by their ISPs.
Other objections raised by movants, such as those based on alleged defects in the form of the
subpoenas or improper service, may only be raised by the ISPs themselves in an appropriate
motion to quash or for protective order. See, e.g., Fenstermacher v. Morena, No. 1:08-cv-01447-
SKO, 2010 WL 5071042, at *3-5 (E.D. Cal. Dec. 7, 2010) (finding party lacked standing to
quash subpoena based on alleged undue burden to the subpoenaed third party). Accordingly, the
Court declines to quash or modify the subpoenas on the basis of procedural defects alleged by the
movants.
CONCLUSION
For the foregoing reasons, the Court finds that the movants’ privacy interest in their
identifying information does not outweigh Plaintiff’s need to obtain such information to pursue
its copyright claims. Therefore, the Court finds that there is no basis to quash or modify the
subpoenas based on the movants’ alleged privacy interests or to allow the movants to proceed
anonymously. Furthermore, the Court finds that until Plaintiff has named and served the
defendants in this action, it is premature to evaluate the movants’ assertions that this Court lacks
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personal jurisdiction over them. The Court further finds that based on the allegations in the
Complaint, Plaintiff has satisfied the requirements for permissive joinder of the John Doe
Defendants in this action. The Court further finds that the movants lack standing to assert other
procedural objections to the subpoenas served on ISPs.
Accordingly, the Court shall deny the pending motions to quash and/or for protective
orders relating to the subpoenas served by Plaintiff. The Court shall also deny the pending
motions to dismiss for lack of jurisdiction and motions to sever pursuant to Rule 21 filed by
putative John Doe Defendants. The Court shall also deny the motions filed by movants seeking
to proceed anonymously and instruct the Clerk of the Court not to accept such motions for filing.
An appropriate Order accompanies this Memorandum Opinion.
Date: June 10, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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