Hard Drive Productions v. Does [1]

On September 27, 2011, adult-film company Hard Drive Productions filed a lawsuit in federal court against 1,495 anonymous defendants. The complaint [2] alleged that the defendants were all involved in transferring one of Hard Drive's copyrighted films through the file-sharing protocol BitTorrent [3]. Hard Drive alleged one count of copyright infringement, and included a list of the IP addresses allegedly involved in the BitTorrent transfers.

Hard Drive then moved [4] for expedited discovery, in order to subpoena the relevant Internet Service Providers for the identities of the parties linked to the IP addresses. The district court granted [5] Hard Drive's motion and allowed the company to subpoena the ISPs.

Over the following month, the district court received three anonymous motions to quash or modify the subpoenas. On November 2 District Court Judge Bates denied [6] the anonymous motions on the basis of local court rules requiring filings to contain full identifying information. Judge Bates further stated that the anonymous defendants could re-file their motions under their true names, and those motions (and their identities) would be kept under seal from both the plaintiff and the general public, even if the motions eventually failed. Judge Bates also stayed [7] the subpoenas because the anonymous motions raised "substantial issues."

On November 10, Judge Bates issued an order [8] clarifying the procedure by which the defendants' filings would be placed under seal from the plaintiff.

On November 16, Judge Bates referred [9] the case to Magistrate Judge Facciola. On November 28, the Magistrate Judge issued to counsel a notice [10] of the case's assignment.

On November 22 and 23, the court received a pair of motions under seal, accompanied by publicly accessible [11] notices of those filings. One of these notices [12] mentioned that the sealed motion included arguments regarding personal jurisdiction, Rule 45(c)(3)(A) [13], and misjoinder, along with a motion for a protective order. According to one of the notices, the defendants provided [11] Hard Drive with copies of the motions, redacted to remove all personally identifying information.

On November 30, one of the anonymous defendants was dismissed [14] from the case.

On December 2, four defendants, using their real names, filed motions to quash and/or to dismiss. It is unclear whether any of these identified defendants had previously filed anonymously. The four motions, three of which were filed pro se, made slightly different arguments: one [15] claimed to have been away from home when the alleged copyright infringement took place; one [16] made an argument based on the availability of the sought-after information; one [17] argued that the infringement must have happened on the defendant's unsecured WiFi network; the last motion [18] described the allegedly-abusive series of lawsuits filed by the plaintiff, and argued that joinder of all 1,495 defendants was improper.

On December 13, notice [19] of another sealed motion to quash was filed.

On December 21, the Magistrate Judge Facciola refused to docket [20] any anonymously filed motions to quash. He divided the moving defendants into four categories: 1. Those using their real names; 2. Those remaining totally anonymous; 3. Those using only their IP addresses; and 4. Those filing under seal pursuant to Judge Bates's order. The motions filed by defendants using their real names were docketed. Motions filed by defendants who either remained totally anonymous or used only their IP address as identification were rejected, and those defendants were given a February 1 deadline to re-file under their real names. Finally, motions filed under Judge Bates's order (sealing the motions from the plaintiffs) were also rejected. Magistrate Judge Facciola gave these defendants two choices: they could withdraw their motions to quash, thus remaining anonymous "at this point"; or, they could choose to have their motions filed on the public docket, where the "plaintiff and anyone else who accesses the public docket will [be able to] know who they are." These defendants were given until February 1 to decide which option to choose.

Magistrate Judge Facciola acknowledged that these defendants had "justifiably" relied on Judge Bates's order permitting the motions to be sealed from the plaintiffs. The Magistrate Judge "concluded, however, that no one will be permitted to proceed any further in this case without identifying himself or herself," and stated that "I will not consider any motion unless it is publically filed." In support of this conclusion, Magistrate Judge Facciola stated that "[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information." He cited three cases in support of his conclusion: U.S. v. Christie, 624 F.3d 558, 573 (3rd Cir. 2010); Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); and Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010).

On January 5, 2012, Hard Drive filed [21] a set [22] of responses [23] to the [24] four defendants who had previously filed motions under their real names. The content of the responses varied depending on the defendant, but all four contained the same standing argument: that only the ISPs, as the parties to which the subpoenas were directed, had standing to challenge the subpoenas. Hard Drive argued that if a party is neither the target of the subpoena, nor possess the sought-after documents, that party lacks standing to challenge the subpoena. Hard Drive noted that all four defendants may be eligible for an exception under Fed. R. Civ. P. 45(c)(3)(A)(iii) [13], which, according to Hard Drive, applies if a party "claims a personal right or privilege" in the information sought by the subpoena. According to Hard Drive, however, each of the four defendants had failed to claim this personal right.

On January 20, Hard Drive dismissed [25] nine more anonymous defendants.