United States District Court, D. Colorado
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Defendant's "Motion to Quash Plaintiff's Motion to Produce Documents, Information, or Object or [sic] to Permit Inspection of Premises in a Civil Action" [filed January 20, 2015; docket #23]. The motion has been referred to this Court for disposition. (Docket #24.) The matter is briefed to the extent required by law, 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 November 26, 2014, alleging that Defendant, identified only by his Internet Protocol ("IP") address, infringed on Plaintiff's copyrighted work by using the internet and a "BitTorrent" protocol to reproduce, distribute, display, or perform Plaintiff's protected film.
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 #8.) The Court determined that Plaintiff had shown good cause for limited expedited discovery and granted Plaintiff's motion in part. (Docket #10.) 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 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 identification. 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 December 8, 2014. (Docket #11 at 8-9.) In turn, Comcast notified Defendant that it would release his identifying information to Plaintiff by January 15, 2015, unless Defendant filed an objection with the Court. (Id. at 7.) Consistent with these instructions, Defendant first moved to quash the subpoena on December 24, 2014. (Id. ) The Court denied the first motion on procedural grounds ( see docket #14), and Defendant filed a second motion to quash on January 7, 2015 based solely on "improper joinder" (docket #17). Because this case involves only one Defendant, the Court denied Defendant's second motion (docket #20), and the Defendant filed the present "motion to quash Plaintiff's motion to produce documents, information, or object or to permit inspection of premises in a civil action" (docket #23) on January 20, 2015. Construing the document liberally for this pro se litigant, Defendant essentially asks the Court to reconsider and vacate its December 1, 2014 order granting discovery of his/her identifying information saying "Defendant's appearance vitiates the need for the subpoena prior to the Rule 26(f) conference and places both parties on equal footing in the discovery process." Defendant also argues that the Plaintiff's "pattern of conduct" in filing multiple cases in court each year (like that of Malibu Media LLC) demonstrates it has "abused the claims process" and questions whether "Plaintiff actually intends to litigate such claims."
Plaintiff responds that Defendant fails to meet the requirements of Fed.R.Civ.P. 45 for quashing the subpoena. Plaintiff further contends that even if Defendant appears in the case as a "John Doe" litigant, the case cannot proceed unless the Plaintiff knows the Defendant's identity, and the Court has already found good cause for discovery of Defendant's identity. Plaintiff also notes that this Court and others have rejected Defendant's argument concerning "improper litigation tactics, " and Defendant's reference to Malibu Media LLC is irrelevant, as "the same purportedly coercive factors present in Malibu Media's lawsuits for infringement of copyrighted adult content are not present in this case where the infringement alleged is of a mainstream Hollywood action film."
Although invited and provided the opportunity to do so, Defendant did not file a reply brief.
Construing the pro se Defendant's motion liberally, I find that Defendant asks the Court both to reconsider its order granting early discovery and to quash the subpoena served upon Comcast.
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 Defendant's 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 that his appearance as a John Doe Defendant is sufficient to place the parties "on equal footing in the discovery process"; however, the Court disagrees. Certainly, there may be exceptional cases in which a party remains anonymous even to the opposing party but, here, the Defendant has not demonstrated any such applicable exceptions. Pursuant to the federal rules, the parties exchange discovery with each other, not through the Court; however, under the Defendant's proposal, the Plaintiff would have no way to communicate with the Defendant through discovery. Moreover, to the extent that the Defendant disputes he or she committed the alleged infringement, without Defendant's address or access to ...