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Document 34

Document 34

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Published by copyrightclerk
NON-PARTY COMCAST’S MEMORANDUM IN OPPOSITION TO
MOTION TO COMPEL COMPLIANCE WITH SUBPOENA
NON-PARTY COMCAST’S MEMORANDUM IN OPPOSITION TO
MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

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Published by: copyrightclerk on Apr 12, 2013
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01/08/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISEASTERN DIVISION
FLAVA WORKS, INC.,
Plaintiff 
,v. JOHN DOES 1 TO 293,
Defendants.
 No. 12 C 7869 Judge LefkowMagistrate Judge Kim
NON-PARTY COMCAST’S MEMORANDUM IN OPPOSITION TOMOTION TO COMPEL COMPLIANCE WITH SUBPOENA
Plaintiff Flava Works, Inc. (“Flava”) is a Florida corporation which producespornographic films. Non-Party Comcast Cable Communications, LLC (“Comcast”) is anInternet service provider in the business of providing access to the Internet to its customers.Flava has filed a motion to compel Comcast to produce the names and addresses of its customerswho have allegedly participated in a Bit Torrent “swarm” involving one of Flavas films, aneffort entitled “Thugboy V.11 Running from the Dick” (the “Film”). Comcast timely objectedto Flava’s subpoena pursuant to Fed. R. Civ. P. 45 and submits the following arguments in support of its opposition to Plaintiff’s motion to compel.
I.
 
PRELIMINARY STATEMENT
 This proceeding arises from a copyright infringement action filed by Flava alleging thatcertain anonymous defendants infringed its copyright in the Film by distributing anddownloading unauthorized copies or excerpts over the Internet. Comcast is not a defendant inthis action and is not alleged to have done anything wrong. Instead, Comcast was served with asubpoena requiring it to provide the names and addresses of Comcast’s customers who Flavacontends illegally downloaded the copyrighted work via the Bit Torrent file sharing protocol.
DWT 21487924v2 0107080-000208
 
Case: 1:12-cv-07869 Document #: 34 Filed: 04/09/13 Page 1 of 15 PageID #:457
 
 The subpoena is improper and Flava’s motion to compel should be denied on a variety owell-established grounds, mostly stemming from the fact that the 293 John Does have beenimproperly joined in a single action. In addition, Comcast objects to Flava’s subpoena on thegrounds that it is unduly burdensome (due to misjoinder and because only 8 of the 58 ComcastIP addresses listed in the subpoena are for individuals within this Court’s jurisdiction). Becauseof these problems, Flava has not obtained a valid court order authorizing disclosure of subscribers’ identifying information as required by 47 U.S.C. § 551(c)(2)(B).As more fully set forth below, Flavas motion to compel compliance should be denied for the following reasons:
First
, the subject subpoena should be quashed insofar as Flava fails to fulfill itsaffirmative duty to prevent undue burden or expense to the persons subject to the subpoena.Fed.R. Civ. P. 45(c)(1).Flavas subpoena fails to prevent undue burden resulting from nonpartyterritorial inconvenience, which impacts not only Comcast, but also its subscribers, who have aprivacy interest in the information sought by Flava.
, 141 F.3d 337, 343 (D.C.Cir. 1998).In addition, Comcast’s compliance fees are reasonable and discounts the costsactually incurred to comply with Plaintiff’s requests.
Second
, as will be discussed, 
, the rules for proper joinder of the 293 Doe defendantscannot be satisfied in this action and, therefore, the subpoena seeking to identify the extra-territorial and improperly joined owners of IP addresses is not reasonably calculated to lead tothe discovery of evidence relevant to the pending claims.Fed. R. Civ. P. 26(b)(1) and 45. 
 Third
, Flava should not be allowed to profit from unfair litigation tactics whereby Flavauses the offices of the Court as an inexpensive means to gain Doe defendants’ personalinformation and coerce “settlements” from them. As shown by the extra-territorial sweep of itssubpoena, Flava has no interest in actually litigating its claims against the Doe defendants in this2
Case: 1:12-cv-07869 Document #: 34 Filed: 04/09/13 Page 2 of 15 PageID #:458
 
Court, but simply seeks to use the Court and its subpoena powers to obtain sufficient informationto shake down the Doe defendants.Fed. R. Civ. P. 26(c)(1) allows the Court to deny discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden orexpense.” ). This case requires such relief.
II.
 
BACKGROUND
On February 11, 2013, Flava served the subject subpoena upon Comcast requestingpersonal identifying information for 58 subscribers’ IP addresses. As detailed in the Declarationof Monica Mosley, Counsel, Privacy and Law Enforcement, for Comcast (attached hereto as Ex.A), Comcast’s initial response to the subpoena was to confirm that records for the IP addresseslisted in the subpoena would be preserved. (
Id.
10-11). Additionally, given the significantexpenditure of time and resources Comcast incurs in connection with responding to similarsubpoenas, (
see id.
3-9), Comcast requested that Plaintiff reimburse the estimated associatedcosts in advance of Comcast’s response or within a short period of providing Comcast’sresponses at a reduced cost. (
Id
. ¶ 12).Comcast’s compliance costs are justified in light of the time consuming process involvedin linking subscriber accounts to IP addresses and Comcast’s obligation to expeditiously notifyits subscribers by overnight mail. (
Id
. ¶¶ 6, 7). The pure cost to Comcast associated with eachIP address look-up is approximately $120 per address, which of course does not include therealization of any profit by Comcast. (
Id
. ¶ 8). Comcast offered to find a cheaper alternative forovernight notification (which would necessarily require Plaintiff’s agreement to extend the timefor Comcast’s response), which would bring the cost per look-up down to approximately $90from $120, or $60 for each IP address that links to a subscriber already identified in connectionwith another look-up (or that does not link at all). (
Id
. ¶ 12).3
Case: 1:12-cv-07869 Document #: 34 Filed: 04/09/13 Page 3 of 15 PageID #:459

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