United States District Court, D. Colorado
Michael E. Hegarty United States Magistrate Judge.
John Doe 2, through counsel, has filed a motion seeking to
quash the subpoena Plaintiff served on his internet service
provider (“ISP”), Comcast, regarding subscriber
IP Address 18.104.22.168. Primarily, John Doe 2 argues he is a
resident of Minnesota and, thus, the Court has no personal
jurisdiction over him. John Doe 2 also argues the Plaintiff
fails to allege sufficient facts demonstrating a prima
facie copyright infringement claim, has not shown
reliable methodology in identifying potential defendants, and
has improperly joined the Defendants in this case. The Court
finds John Doe 2 has failed to articulate how these arguments
are proper objections to a subpoena served pursuant to
Fed.R.Civ.P. 45 but, nevertheless, the Court did consider the
latter three in analyzing whether the subpoena was proper,
then permitted Plaintiff to serve the subpoena. The Court
then concluded the Plaintiff properly demonstrated
specificity and good cause in seeking discovery for the
identities of purported infringers. Here, the Court finds no
basis on which to quash the subpoena and will deny John Doe
whether Plaintiff has alleged a plausible copyright claim or
used a “reliable” method for identifying the
Defendants, such information remains subject to proof through
this action. As in any other action, the plaintiff need not
prove a defendant committed the alleged wrongdoing before
engaging in discovery. Certainly, through such early
discovery, the Plaintiff can obtain information from the
named Defendant him- or herself concerning whether the
Defendant actually committed the infringement. The Court
concludes its order granting pre-Rule 26 discovery is proper
and based on sufficient specificity and good cause
demonstrated by the Plaintiff.
whether the Defendants are properly joined, first (and most
importantly), the plain language of Rule 45 does not
authorize the Court to quash a subpoena based on misjoinder.
Fed.R.Civ.P. 45(d)(3)(A) requires the Court to quash or
modify a subpoena that: (i) fails to allow a reasonable time
to comply; (ii) requires a person to comply beyond the
geographical limits specified in Rule 45(c); (iii) requires
disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to
undue burden. No other grounds are listed.
district, a party has no standing to quash a subpoena served
on a third party, except as to claims of privilege or upon a
showing that a privacy issue is implicated. Windsor v.
Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997)
(“[a]bsent a specific showing of a privilege or
privacy, a court cannot quash a subpoena duces tecum”);
see also Broadcort Capital Corp. v. Flagler Secs.,
Inc., 149 F.R.D. 626, 628 (D. Colo. 1993). Other courts
in the Tenth Circuit have held that a party has standing to
challenge a subpoena served on a third party only on the
basis of privilege, personal interest, or proprietary
interest. Howard v. Segway, Inc., No.
11-CV-688-GFK-PJC, 2012 WL 2923230, at *2 (N.D. Okla. July
18, 2012) (citing Washington v. Thurgood Marshall
Acad., 230 F.R.D. 18 (D.D.C. 2005)).
unrelated to a claim of privilege or privacy interests are
not proper bases on which a party may quash a subpoena.
Windsor, 175 F.R.D. at 668; see also Oliver B.
Cannon & Son, Inc. v. Fidelity & Cas. Co. of New
York, 519 F.Supp. 668, 680 (D.C. Del. 1981) (movant
lacks standing to raise objections unrelated to any right of
privilege). Thus, even where a party has standing to quash a
subpoena based on privilege or a personal right, he or she
lacks standing to object on the bases of relevance or undue
burden. Howard, 2012 WL 2923230, at *2; see also
Malibu Media, LLC v. John Does 1-15, No. 12-2077, 2012
WL 3089383, at *8 (E.D. Pa. July 30, 2012) (noting that a
defendant seeking to quash a subpoena on an internet service
provider “is not faced with an undue burden because the
subpoena is directed at the internet service provider and not
the recipient of the subpoena, has not objected to its terms.
John Doe 2's objection regarding misjoinder, in addition
to being improper under Rule 45, is also misplaced here. The
Court observes that severing defendants would delay, but not
eliminate, Plaintiff's efforts to obtain John Doe 2's
identifying information from Comcast. Simply put, severance
affects the timing of disclosure but not the underlying
right. In this context, such a delay may prove fatal to
Plaintiff's claims insofar as the information Plaintiff
seeks is subject to destruction. Given the inevitable
disclosure of the information at issue in this subpoena, it
seems judicial efficiency is best promoted by declining to
reach the question of joinder at this time.
John Doe 2's argument that the Court lacks personal
jurisdiction does not persuade the Court to quash the
subpoena. Even if it were a proper objection, John Doe
2's affidavit (if the Court were to overrule a hearsay
objection) and the Plaintiff's investigator's
affidavit raise a question of material fact as to whether the
infringement occurred in Colorado and, thus, whether the
Court has personal jurisdiction over John Doe 2 as a
Defendant in this case. With this limited evidence and at this
stage of the litigation, the Court may not make findings as
to John Doe 2's personal jurisdiction argument.
just as John Doe 2 has a right to defend him- or herself in a
civil lawsuit and even if there is no ultimate liability,
“Plaintiff has a constitutional right to file a lawsuit
and engage in discovery to determine whether a defendant or
someone using a defendant's IP address infringed on its
protected works, ” provided the Plaintiff has a
good-faith basis under Rule 11 for bringing suit. Malibu
Media, LLC v. Maness, No. 12-cv-01873-RBJ-MEH, 2012 WL
7848837, at *6 (D. Colo. Dec. 4, 2012), recommendation
adopted by 2013 WL 1397275 (D. Colo. Apr. 5, 2013).
Similarly, Plaintiff shares the same right as all litigants
to settle or dismiss its claims before engaging in discovery
and prior to the filing of any dispositive motions.
these reasons, the Court finds that John Doe 2 has not met
his or her burden of showing that the Court should quash the
subpoena Plaintiff served on Comcast in this case. Therefore,
Defendant John Doe 2's Motion to Quash Comcast Subscriber
IP Address 22.214.171.124 [filed September 20, 2017; ECF
No. 18] is denied.
Although permitted to do so, John Doe 2
did not file a reply brief responding to Plaintiffs arguments