Opinion
Civil Action 2:14-cv-00820
10-15-2014
Malibu Media, LLC, Plaintiff v. Jane Doe, subscriber assigned IP address 174.102.111.139, Defendant
Judge Marbley
ORDER
Plaintiff Malibu Medial, LLC ("Malibu Media") brings this action against defendant Jane Doe for copyright infringement. Plaintiff only knows defendant by her Internet Protocol ("IP") address. Only defendant's Internet Service Provider ("ISP") can identify the defendant. On July 14, 2014, plaintiff's July 12, 2014 motion for leave to file discovery to serve a third party subpoena on defendant's ISP was granted. This matter is before the Magistrate Judge on defendant Jane Doe's August 7, 2014 motion to quash the subpoena (doc. 5).
As a preliminary matter, Doe's unopposed request that she proceed anonymously is granted.
Under Rule 26 of the Federal Rules of Civil Procedure, parties have the right to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . . . " Fed. R. Civ. P. 26(b)(1). The scope of discovery is within the broad discretion of the district court. Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce. Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir.2007) (citing Fed. R. Civ. P. 26(b)(2)). In determining the proper scope of discovery, a district court balances a party's "right to discovery with the need to prevent 'fishing expeditions.' " Conti v. Am. Axle & Mfg., No. 08-1301, 326 Fed. Appx. 900, at *907 (6th Cir. May 22, 2009) (quoting Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir.1998)).
Under Rule 45 of the Federal Rules of Civil Procedure, parties may command a nonparty to produce documents. Fed. R. Civ. P. 45(a)(1). Rule 45 further provides that "the issuing court must quash or modify a subpoena that . . . 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)(iii), (iv). Although irrelevance or overbreadth are not specifically listed under Rule 45 as a basis for quashing a subpoena, courts "have held that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26 ." Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (internal quotation marks omitted). The movant bears the burden of persuading the court that a subpoena should be quashed. See, e.g., Baumgardner v. Louisiana Binding Serv., No. 1:11-cv-794, 2013 WL 765574 at *1 (S.D. Ohio Feb. 28, 2013).
Here, the subpoena subject to the motion to quash was served upon the ISP, not on defendant Doe. Generally, absent a claim of privilege, a party has no standing to challenge a subpoena to a nonparty. Novovic v. Greyhound Lines, Inc., 2:09-CV-00753, 2012 WL 252124 at *8 (S.D. Ohio Jan. 26, 2012) (quoting Donahoo v. Ohio Dep't of Youth Servs, 211 F.R.D. 303, 306 (N.D.Ohio 2002)).
The issue of whether a party has standing to challenge a third-party subpoena has been of growing significance in recent years due to an increase in BitTorrent, a method of internet based file sharing, leading to copyright infringement litigation. The district courts have been divided on whether a Doe defendant has a personal right or privilege in their identity sufficient to confer standing to challenge subpoenas issued to non-party internet service providers.CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2459.
Doe argues that the subpoena seeks confidential information of which she has a personal or proprietary interest. Many courts, however, have rejected that argument. See, e.g., Riding Films, Inc. v. John Does 129-193, No. 2:13-CV-46, 2013 WL 3322221, at *5 (S.D. Ohio July 1, 2013); Breaking Glass Pictures v. Doe, No. 3:13-CV-75, 2013 WL 2898026 at *2 (E.D. Tenn. June 13, 2013); and First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 247 (N.D.Ill., 2011) ("[C]ourts have consistently held that Internet subscribers do not have a reasonable expectation of privacy in their subscriber information—including name, address, phone number, and email address — as they have already conveyed such information to their ISPs."). I agree with those cases.
Doe also objects to the subpoena on the basis of the lack of reliability of IP address tracking technology. The IP subscriber is not necessarily the copyright infringer. Many people could have access to someone's IP address, such as a visitor, neighbor, or passerby on the street. Defendant's argument, however, is premature at this stage of the proceedings because the merits of the complaint are not relevant to the enforceability of the subpoena. See Malibu Media, LLC v. John Does 1-14, 287 F.R.D. 513, 517 (N.D. Ind. 2012).
Doe further objects to the subpoena on the basis of undue burden. Rule 45 requires that the party issuing the subpoena "take steps to avoid imposing undue burden or expense on a person subject to the subpoena." Fed. R. Civ. P. 45(c)(1) (emphasis added). As a result, Doe does not have standing to object to the subpoena on this basis.
For the reasons stated above, defendant Jane Doe's August 7, 2014 motion to quash the subpoena (doc. 5) is DENIED.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by the District Judge. The motion must specifically designate the Order, or part thereof, in question and the basis for any objection thereto. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
s/Mark R. Abel
United States Magistrate Judge