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HONORABLE RICHARD A. JONES
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
DALLAS BUYERS CLUB, LLC,
Plaintiff,
v.
JOHN DOES 1 THROUGH 10,
Defendants.
CASE NO. C14-1819RAJ ORDER
I. INTRODUCTION
This matter comes before the court on two motions from
non-parties requesting
that the court quash subpoenas Plaintiff served upon them.
Although Plaintiff has not yet
had the opportunity to oppose those motions, the court GRANTS
them (Dkt. ## 22, 24)
without prejudice to re-serving the subpoenas in accordance with
this order. This order
also contains rulings relevant to the twelve other similar cases
that Plaintiff has brought
in this District.
II. BACKGROUND
A. Summary of the First Eight Lawsuits Plaintiff Filed
Between July 2014 and January 2015, Plaintiff filed eight
essentially identical
lawsuits. In each suit, Plaintiff named between 10 and 39 John
Doe Defendants who it
accused of infringing its copyright in the motion picture Dallas
Buyers Club by
unlawfully copying or distributing the film using peer-to-peer
file sharing networks.
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ORDER 2
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At the time of filing each of the eight suits, Plaintiff could
identify the John Doe
Defendants only by the IP address at which their allegedly
infringing activity occurred.
Plaintiff accompanied its complaint in each of the eight suits
with a motion for expedited
discovery. That motion requested leave to subpoena the internet
service provider (ISP)
associated with each of the IP addresses in order to learn the
identity of the subscriber
associated with each IP address. In each case, the court granted
a motion giving Plaintiff
leave to serve that subpoena.
The dockets in the eight cases reflect that Plaintiffs claims
against some
Defendants have progressed, whereas others are in limbo. The
dockets reflect mixed
results since the court gave Plaintiff leave to subpoena the
ISP. A few subscribers whose
information fell within the scope of the subpoenas to the ISP
moved unsuccessfully to
quash the subpoena. Plaintiff apparently uncovered information
that allowed it to dismiss
its claims against about 60 of the about 135 Doe Defendants it
sued in these first eight
lawsuits. Whether those dismissals came as a result of
settlements or for another reason,
the court can only guess.
What the court need not guess about is that with only one
exception, Plaintiff has
not named any defendant even though these cases have been
pending for at least three
months and as many as ten months. The court will soon address
the exception, but as to
approximately 65 Doe Defendants from these first eight cases,
their cases are in limbo.
The court has little indication that Plaintiff is diligently
pursuing these cases to a
resolution. That will change following this order.
The exception that the court mentioned to Plaintiffs choice not
to name any of the
Doe Defendants is the first of these cases (No. C14-1153RAJ), in
which Plaintiff filed an
amended complaint in November 2014 that transformed the case
from one against ten
Doe Defendants to a case against seven named Defendants and one
Doe Defendant. At
Plaintiffs request, the court entered default against one of the
named Defendants.
Although almost three months have passed since the entry of
default, Plaintiff has not
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ORDER 3
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sought a default judgment. Plaintiff has dismissed its claims
against three of the
remaining seven Defendants, including the sole remaining John
Doe Defendant. Four
Defendants remain, and there is no indication that Plaintiff is
doing anything to pursue its
claims against those four Defendants. That is perhaps in part
because the court has not
issued an initial case management order. That will also change
following this order.
B. Summary of Current Litigation in Plaintiffs 13 Cases
The court mentions the mixed progress in the first eight of
Plaintiffs cases for two
reasons. First, the motions to quash in this case reflect that
Plaintiff is continuing its
efforts to obtain discovery via subpoena, but is now doing so
without leave of court.
Second, Plaintiff has now filed an additional five cases,
essentially identical to the first
eight, and has filed five motions for leave to serve subpoenas
on the ISP associated with
an additional 91 Doe Defendants. This order will resolve the
motions to quash, require
Plaintiff to obtain leave of court for all subpoenas except in
limited circumstances, and
set a timetable for ensuring that all 13 of these cases, new and
old, reach a resolution.
C. Plaintiff May Not Subpoena Individuals Except as Rule
26(d)(1) Permits.
Before the two motions to quash now pending, the court has only
once been made
aware of Plaintiffs efforts to subpoena individuals, as opposed
to ISPs. In February
2015, the court terminated Plaintiffs ex parte motion for leave
to issue subpoenas to four
individuals whose names it had learned via a subpoena to an ISP.
Case No. C14-
1336RAJ, Dkt. # 28 (Feb. 13, 2015 ord.). Among other
shortcomings, Plaintiff did not
include the subpoenas it proposed to issue. The court also
pointed out, however, that
Plaintiff had cited no authority establishing that it needed
leave of court to issue a
subpoena before the formal commencement of discovery. Id.
The non-parties who filed motions to quash now before the court
have cited
authority limiting Plaintiffs right to serve subpoenas. Rule
26(d) of the Federal Rules of
Civil Procedure declares that absent a court order or other
authorization, [a] party may
not seek discovery from any source before the parties have
conferred as required by Rule
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26(f) . . . . The term any source applies to non-parties as well
as parties, and thus
encompasses subpoenas to non-parties. See Deuss v. Siso, No.
14-cv-00710-YGR (JSC),
2014 U.S. Dist. LEXIS 121464, at *10 (N.D. Cal. Aug. 29, 2014);
Villegas v. United
States, No. CV-12-0001-EFS, 2012 U.S. Dist. LEXIS 69389, at *24
(E.D. Wash. May 16,
2012). There is no evidence that Plaintiff has conducted a Rule
26(f) conference in any
of its cases.
That Plaintiff did not have leave of court to subpoena the two
individuals who
moved to quash their subpoenas is reason enough to grant those
motions to quash. But
the motions raise other concerns. Both subpoenas sought
documents and testimony for a
deposition to occur on April 29. Plaintiff served one subpoena
on April 21, and the other
on April 22. Plaintiff thus gave non-parties eight days or fewer
to prepare for a
deposition. The Federal Rules impose no fixed period of notice
in advance of a
deposition. A party seeking a deposition must give reasonable
written notice in
advance. Fed. R. Civ. P. 30(b)(1), and Rule 45(d)(3)(A)(i)
permits the target of a
subpoena to object where the subpoena fails to allow a
reasonable time to comply.
These subpoenas seek documents as well as testimony. The
document requests are
hardly straightforward they seek documents identifying the users
of an IP address as
well as all documents, files or communications relating to
BitTorrent file-sharing. The
court can only guess how Plaintiff would attempt to enforce
these subpoenas, but they
arguably call for the target to produce documents that exist
only within the system files of
the targets home computer(s). Rule 34(b)(2)(A) of the Federal
Rules of Civil Procedure
ensures that a party served with a request for production of
documents has at least 30
days to respond. The rules provide no fixed period of time for a
response from the target
of a subpoena for documents, but the court is firmly convinced
that the seven or eight
days that Plaintiff provided in these instances is
inadequate.
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III. ORDER
To ensure that Plaintiff proceeds with reasonable diligence to
bring these cases to
a resolution, and to protect non-parties who may be subject to
discovery arising from
these cases, the court orders as follows:
1) In each of the eight cases Plaintiff filed before April 2015,
except Case No.
C14-1153RAJ, Plaintiff must, within 30 days of this order,
either file an
amended complaint with no John Doe defendants, or file a motion
for leave to
amend in which it explains why it wishes to continue to name one
or more
John Doe defendants.
2) The court will issue orders permitting Plaintiff to subpoena
an ISP in each of
the five cases Plaintiff filed in April 2015. Plaintiff must,
within 120 days of
serving each subpoena, either file an amended complaint with no
John Doe
defendants, or file a motion for leave to amend in which it
explains why it
wishes to continue to name one or more John Doe defendants.
3) As to any defendant who Plaintiff has named, Plaintiff must
seek the entry of
default within 30 days after the expiration of the time for that
defendant to
answer or otherwise respond to the complaint. Plaintiff must
seek a default
judgment or otherwise resolve its claim against a defaulted
defendant within 30
days of an order entering default against that defendant. As to
the defaulted
Defendant in Case No. C14-1153RAJ, Plaintiff must move for
default
judgment within 30 days of this order.
4) In Case No. C14-1153RAJ, the court will enter its standard
order calling for a
joint status report. In all other cases, initial case management
shall occur as
follows. Within 21 days of a defendants answer or other response
to
Plaintiffs complaint, Plaintiff must arrange a Rule 26(f)
conference with that
defendant. Plaintiff and that defendant must file a brief joint
discovery plan
within 7 days of that conference. Discovery between Plaintiff
and that
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defendant will commence when the plan is filed. Once all
defendants in a case
have either participated in a Rule 26(f) conference or been
defaulted, the court
will issue an order calling for a joint status report, and will
set a trial date and
pretrial schedule based on that report.
5) Until Plaintiff has filed a discovery plan for every
defendant in a case who is
not in default, Plaintiff may not subpoena a non-party unless it
obtains leave of
court. Unless the court orders otherwise, Plaintiff must allow
at least 30 days
between service of a subpoena and the time for complying with
the subpoena.
6) Plaintiff shall withdraw any pending subpoena to a target
other than an ISP,
although it may serve a new subpoena in compliance with this
order.
7) The court will prepare a version of this order that the clerk
shall issue as a
Standing Case Management Order in each of Plaintiffs 12 other
pending
cases. Because there are no named parties in 12 of the 13 cases
Plaintiff has
filed, the individuals who Plaintiff contacts do not receive
notice of the courts
rulings. To ensure that the people who are the targets of
Plaintiffs
investigation receive notice both of the courts case management
plan and of
its intent to monitor Plaintiffs discovery requests to
non-parties and unnamed
parties, Plaintiff must provide notice of this order. In every
case in which
Plaintiff has contacted an individual (or entity) who is a
potential party in a
case Plaintiff has filed, Plaintiff must ensure that the
individual (or entity)
receives a copy of both this order and the Standing Case
Management Order in
the applicable case. This order will serve as the Standing Case
Management
Order in Case No. C14-1819RAJ.
8) Plaintiff need not provide a copy of this order or take any
further action with
respect to any individual or entity with which it has reached a
settlement or
other permanent resolution of its claims.
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9) When Plaintiff makes a new contact with an individual or
entity who is a
potential party in one of its cases, it shall as part of the
initial contacts make
arrangements for that individual or entity to receive a copy of
both this order
and the Standing Case Management Order in the applicable case.
The court
expects Plaintiff to construe the term potential party
liberally. If Plaintiff has
reason to believe that the individual or entity it contacts may
be liable to
Plaintiff, Plaintiff must provide notice of this order and the
applicable Standing
Case Management Order.
IV. CONCLUSION
The court GRANTS the two motions to quash. Dkt. ## 22, 24.
Plaintiff shall
comply with the case management orders above.
DATED this 4th day of May, 2015.
A The Honorable Richard A. Jones United States District Court
Judge
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I. INTRODUCTIONII. BACKGROUNDIII. ORDERIV. CONCLUSION
