Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577

Citation: Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577, 2010 WL 3522256 (D.D.C. Sept. 10, 2010) (full-text).

Factual Background
Plaintiff Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. is the owner of the copyright for the motion picture “Far Cry.” Plaintiff brought this action against Does 1-4,577 alleging illegal downloading and distribution of the movie over the Internet.

Trial Court Proceedings
After filing suit, Plaintiff subpoenaed the Internet Service Providers of the internet users corresponding to the IP addresses used in connection with the alleged activity. Among the information requested by Plaintiff was the actual names and addresses of the Doe Defendants so that it could properly serve the individuals suspected of infringement. For those Does that sought to quash the subpoena, the District Court denied their motions, stating that there was no cognizable claim of privacy in their internet subscriber information.

Following receipt of the subpoena, the Court instructed the ISPs to provide their users the following notice:

"If you are receiving this notice, that means that Plaintiffs have asked your Internet Service Provider to disclose your identification information to them, including your name, current (and permanent) address, 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."

After receiving this notice, four Does filed a motion to quash, only one filed under seal to conceal his/her identity. To determine whether a discovery requests represents an “undue burden,” the court must balance the relevance of the discovery sought and its importance to the underlying case against the potential hardship to the subject of the subpoena. Under Federal Rule of Civil Procedure 45(c)(3), a person can move to quash or modify a subpoena if it “requires disclosure of privileged or other protected matter, if no exception or waiver applies.”

The moving Does did not seek protective orders, and offered relatively unpersuasive arguments to quash. One Doe provided no reason to quash, two others provided information relating to the underlying merits of the case rather than directed at the oppressive nature of the discovery request, and one Doe objected entirely because the subpoena sought “personal information.” Following the three motions to quash that were not filed under seal, the Court noted that their motions could have been deemed moot as to their names and addresses, which were present on their filings. Even presuming that none of the motions were moot, the Court declined to entertain the misplaced arguments of the Does and cited to precedent showing that there is no expectation of privacy in internet subscriber information.

All four motions to quash were denied and the motion filed under seal was ordered unsealed.