United States District Court, D. Colorado
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is a Renewed Motion to Quash Third-Party Subpoena and to Vacate Rule 26 Order [filed March 20, 2014; docket #15] filed by Defendant John Doe Subscriber Assigned IP Address 188.8.131.52 (hereinafter "Defendant"). The motion has been referred to this Court for disposition. (Docket #17.) The matter is fully briefed, and the Court finds that oral argument will not assist with adjudication of the motion. For the reasons that follow, Defendant's motion is denied.
Plaintiff initiated this action on January 29, 2014, alleging that Defendant, identified only by his Internet Protocol ("IP") address, infringed on 12 of Plaintiff's copyrighted works by using the internet and a "BitTorrent" protocol to reproduce, distribute, display, or perform Plaintiff's protected films.
In an effort to identify the alleged infringer, Plaintiff requested permission from the Court to serve limited, immediate discovery on Defendant's Internet Service Provider ("ISP") prior to the Rule 26(f) conference. (Docket #6.) The Court determined that Plaintiff had shown good cause for limited expedited discovery and granted Plaintiff's motion in part. (Docket #9.) In particular, the Court authorized Plaintiff to serve a third-party subpoena pursuant to Fed.R.Civ.P. 45 on the identified ISP for the limited purpose of ascertaining the identity of Defendant based on the IP address listed in the Complaint. The Court directed that the subpoena be limited to providing Plaintiff with the true name, address, telephone number, and email address of the Defendant to whom the ISP has assigned an IP address. With the subpoena, the Court directed Plaintiff to serve a copy of its order and the ISP to notify its subscriber of the subpoena and request for indentification. Finally, the Court emphasized that Plaintiff may only use the information disclosed in response to the subpoena for the purpose of protecting and enforcing its rights as set forth in its Complaint [docket #1]. The Court cautioned Plaintiff that improper use of this information may result in sanctions.
In accordance with the Court's order, Plaintiff served a Rule 45 subpoena on Defendant's ISP, Comcast, on or about February 11, 2014. (Motion, docket #15 at 2.) In turn, Comcast notified Defendant that it would release his identifying information to Plaintiff by March 20, 2014, unless Defendant filed an objection with the Court. ( Id. ) Consistent with these instructions, Defendant first moved for reconsideration of the Court's order permitting early discovery and to quash the subpoena on March 18, 2014. (Docket #12.) The Court denied the first motion on procedural grounds [ see docket #14], and Defendant filed the present renewed motion [docket #15] on March 20, 2014. Defendant asks the Court to reconsider and vacate its January 31, 2014 order for Plaintiff's failure to demonstrate good cause and specificity. Defendant also argues the subpoena served on Comcast should be quashed because "it is not very likely" to identify the actual infringer and, thus, will unduly burden Defendant by causing embarrassment and "unwarranted annoyance" from the Plaintiff's attempts to settle. Defendant also challenges the extent to which Plaintiff's identification of the infringing IP address can be used to show Defendant committed the alleged infringement. Given the risk of mistaken identification and the public embarrassment that may ensue from perceived unlawful downloading of Plaintiff's pornographic film, Defendant asks the Court to prohibit Comcast from disclosing his identifying information.
Plaintiff responds that Defendant fails to meet the requirements of Fed.R.Civ.P. 45 for quashing the subpoena. Plaintiff contends that an IP address is the most effective way to identify a potential infringer, and that courts ruling on the issue have approved of appropriate subpoenas. Further, Plaintiff argues that even if the subscriber is not the actual infringer, the federal court rules allow discovery of the "identity and location of persons who know of any discoverable matter." Moreover, Plaintiff contends that this Court has already mitigated any concern for embarrassment or annoyance by granting Defendant's motion for protective order and for limited discovery. Plaintiff also notes that this Court and others have found Plaintiff does not engage in improper litigation tactics. Finally, Plaintiff contends that its Complaint would survive a Fed.R.Civ.P. 12(b)(6) challenge and Defendant's denial of liability has no bearing on the present motion.
Defendant replies that the present motion is not focused necessarily on Rule 45 governing motions to quash, but rather on Defendant's request that the Court reconsider its order granting early discovery under Rule 26(d)(1). Defendant contends that this Court's granting of the present motion would necessitate quashing the subpoena. Defendant also cites cases holding that an IP address may be insufficient, itself, to correctly identify the person who committed the infringement and argues that, as such, Plaintiff fails to demonstrate a reasonable likelihood that the information sought through the challenged subpoena will lead to the discovery of admissible evidence.
A. Request to Reconsider Order Permitting Early Discovery
The Federal Rules of Civil Procedure do not recognize a "motion to reconsider." Van Skiver v. U.S., 952 F.2d 1241, 1243 (10th Cir. 1991). Nevertheless, "motions for reconsideration are routinely entertained in one form or another, by federal courts." U.S. ex rel. Superior Steel Connectors Corp. v. RK Specialities, Inc., No. 11-cv-01488-CMA, 2012 WL 3264296, at *1 (D. Colo. Aug. 10, 2012) (unpublished). The bases for granting reconsideration are extremely limited:
Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations omitted). Defendant does not specifically identify which bases upon which he or she relies for the motion; however, because there appear to be no indications that (1) or (2) apply, the Court will construe Defendant's arguments under the third basis.
The Court finds Defendant has not demonstrated a need to correct clear error or prevent manifest injustice by vacating the Court's previous order and prohibiting the ISP from disclosing his/her identity to the Plaintiff. Upon review of the Plaintiff's motion for pre-Rule 26(f) discovery, the operative pleading and the entire record in this case, the Court concludes the Plaintiff has properly demonstrated specificity and good cause in seeking discovery for the identities of purported infringers. Defendant argues his personal identifying information is insufficient to support a legal claim for direct infringement, since an IP address can be falsified or can identify an entire network of computers, rather than the actual infringer him- or herself. However, it is undisputed that an ISP assigns its customers IP addresses for the purpose of identifying their customers and ...