Vondran Legal® - Strike 3 Holdings Litigation Insights - Texas Federal Court say Cobbler-Nevada not authority for quashing an ISP subpoena.  If you received a subpoena notice from your ISP, call us to discuss your case at (877) 276-5084.

Introduction

Many litigants who receive a notice of subpoena from their Internet Service Provider (such as Verizon, Charter, Frontier, Cox, Comcast) also receive a required notice that says they have a limited time (deadline) to file a motion to quash.  This notice from the ISP usually contains a Federal Law notice of the various grounds to file a motion to "quash" the subpoena (often mistakenly called "squash") and this will often lead John Doe Defendants to have hope that they can quash the subpoena and end the case.  However, the federal courts have routinely allowed Plaintiff, Strike 3 Holdings, LLC, wide latitude to seek the name and address of the subscriber of the internet account.  This person is not always the infringer, and it is incumbent on the plaintiff to do their "due diligence" and figure out who the infringer is.  This blog discusses how some defense attorneys have tried to use the Cobbler-Nevada case to try to quash the subpoena.  As this Texas federal court pointed out, this approach is not likely to succeed.

Strike 3 Seeks Early Discovery Subpoena to ISP

Let's take a look at a case on point: Strike 3 Holdings, LLC v. Doe (E.D.Tex. Aug. 29, 2023, No. 4:22-CV-565-ALM) 2023 U.S.Dist.LEXIS 152466, at *1.

"Pending before the Court is Defendant's Objection to Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action, Motion to Squash [sic] Subpoena and Dismiss Action or Alternatively Motion for Protective Order (Dkt. #18). Having considered the motion and the relevant pleadings, the Court finds that the motion should be DENIED."

John Doe Defendant seeks to Quash the subpoena on two grounds

BACKGROUND

Plaintiff Strike 3 Holdings LLC ("Strike 3") owns the copyright for a number of adult films that it distributes via its streaming websites and DVDs. In the above-consolidated cases, Strike 3 has filed numerous copyright infringement claims against John Doe Defendants ("John Does"), alleging that the John Does used a BitTorrent protocol to steal Strike 3's work on a "grand scale. Using the protocol, the John Does downloaded Strike 3's films and redistributed those films to others without Strike 3's permission, thereby infringing Strike 3's copyrights. Strike 3 discovered that the various John Does infringed their copyrights by utilizing an infringement detection system, which identified the John Does by their IP addresses. However, Strike 3 did not have any other identifying information, including the John Does' names, addresses, or contact information. In order to find out this information, Strike 3 filed motions to serve third-party subpoenas on the internet service providers ("ISPs") for the various John Does.

The Court has since granted these motions, including in the current case of Defendant John Doe subscriber assigned IP Address 70.119.84.107 (4:22-cv-645 under lead consolidated case). Specifically, the Court allowed Strike 3 to serve third-party subpoenas on Defendant's ISP, Spectrum, to obtain further information about the Defendant, and it also entered a protective order to protect the interests of the parties (Dkt. #11).

Subsequently, Defendant filed the pending pro se motion, asking the Court to quash the subpoena served on Spectrum or enter a protective order. Strike 3 then responded to the motion.

Pro Se Defendant's arguments to quash

Defendant asserts that Strike 3's subpoena should be quashed for two reasons:

(1) Defendant is not the alleged infringer of Strike 3's work;

(2) the subpoena would not necessarily reveal who allegedly downloaded the infringing work.

Neither argument persuades the Court.

The Court's holding

• Deny being the infringer

Defendant's first argument is essentially a denial of liability. But, in cases such as this one, courts routinely hold that these arguments are inappropriate to quash a third-party subpoena because they "fall outside the scope" of a motion to quash. Strike 3 Holdings, LLC v. Doe, No. 21-1558, 2022 U.S. Dist. LEXIS 9368, 2022 WL 169698, at *2 (D. Md. Jan. 19, 2022) (collecting cases); Strike 3 Holdings, LLC v. Doe, No. 4:19-CV-00167, 2019 U.S. Dist. LEXIS 70286, 2019 WL 1865919, at *2 (N.D. Cal. Apr. 25, 2019) ("Defendant claims innocence. While this may be true, at this juncture, Plaintiff is simply attempting to ascertain the subscriber's identity, and is, therefore, permitted to subpoena the ISP for the defendant's identifying information, and conduct an initial investigation into the defendant." 

Simply put, Strike 3 is attempting to find Defendant's identifying information and ascertain the merits of its case. Denying Strike 3 that opportunity merely because a defendant claimed nonliability would cut Strike 3's case off at the jump. Thus, like the numerous other courts that have addressed the question, the Court finds that Defendant's general denial of liability holds no weight here. See e.g., Voltage Pictures, LLC v. Doe 1-5,000, 818 F. Supp. 2d 28, 35 (D.D.C. 2011) ("A general denial of liability, however, is not a basis for quashing the plaintiff's subpoenas and preventing the plaintiff from obtaining the putative defendants' identifying information."); Strike 3 Holdings, LLC v. Doe, No. 18-CV-2648, 2019 U.S. Dist. LEXIS 587, 2019 WL 78987, at *2 (S.D.N.Y. Jan. 2, 2019) (holding similarly).

• Cobbler-Nevada Argument

Meanwhile, Defendant's alternative argument fares no better. Holding up Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018), Defendant contends the subpoena must be quashed because he is not necessarily the alleged infringer. In Cobbler Nevada, the Ninth Circuit affirmed an order dismissing the plaintiff's complaint because the copyright owner failed to allege facts any facts demonstrating that the defendant was the alleged infringer besides an allegation that the defendant was the registered subscriber of an IP address associated with the infringing activity. 901 F.3d at 1145. In turn, Defendant believes the same principles are at play here, so the Court should quash Strike 3's subpoena at the outset of this case.

But Defendant is not the first to press this argument. And, in near uniformity, federal courts have rejected it. Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203, 1211-12, 448 U.S. App. D.C. 159 (D.C. Cir. 2020); Strike 3 Holdings, 2019 U.S. Dist. LEXIS 587, 2019 WL 78987, at *2; Strike 3 Holdings, LLC v. Doe, No. 2:18-CV-02637, 2019 U.S. Dist. LEXIS 30674, 2019 WL 935390, at *3 (E.D. Cal. Feb. 26, 2019); Malibu Media, LLC v. Doe, No. 18-C-5792, 2019 U.S. Dist. LEXIS 226745, 2019 WL 7876473, at *3 (N.D. Ill. Jan. 2, 2019).

In Strike 3 Holdings, the D.C. Circuit discussed Cobbler Nevada's impact on discovery requests and noted a couple key reasons why the decision does not impact a subpoena at this early stage. First, the D.C. Circuit highlighted key pivotal facts in the case itself. For instance, Cobbler Nevada "granted the plaintiff leave not only to issue its subpoena, but to depose the subscriber once he was identified." Strike 3 Holdings, 964 F.3d at 1211 (citing Cobbler Nevada, 901 F.3d at 1145). Only after those preliminary matters did the Ninth Circuit actually grant the defendant's motion to dismiss.

Attorney Steve® Tip:  This is legal authority that Cobbbler-Nevada MAY WORK in a motion to dismiss. Id. at 1212 (citing Cobbler Nevada, 901 F.3d at 1145).

Furthermore, the D.C. Circuit emphasized that, just because the subpoena may reveal that the defendant is not an alleged infringer, that does not warrant "closing]the courthouse doors before [the plaintiff] can step inside." Stated simply, "we cannot know what [the plaintiff's] subpoena will uncover," and there is a possibility that the subpoena uncovers facts that help the plaintiff's case. 

The Court finds this analysis persuasive and adopts its reasoning here. While Strike 3's subpoena may not prove fruitful, that does not mean it should be quashed before this case proceeds any further.

For these reasons, the Court finds that Defendant's motion should be denied and Strike 3's subpoena should not be quashed.

Additionally, while unclear based on Defendant's motion, it appears that Defendant requests that the Court enter a protective order based on the same arguments raised above. The Court notes that it has entered a protective order in Defendant's case, and Defendant has not provided any reason for why that order is insufficient. So, that request is denied.

Cobbler Nevada Updates

Contact a California Copyright Defense Law Firm

Vondran Legal has handled several hundred Strike 3 cases across the United States and is a clear leader in handling these cases.  We are skilled negotiators and we understand the intricate details of the process, and have the keen ability to ascertain potential defenses and litigate the case in federal court if required.  We are currently litigating against Strike 3 in two federal court cases.  One in Texas, and another in California.  Many firms are not skilled in federal court litigation, and prefer to exist as a "settlement factory."

Being a federal cause of action (copyright infringement), we are able to handle cases nationwide, including in Illinois, California (Northern, Central, Southern and Eastern Districts), Texas, New York, New Jersey, Pennsylvania, Ohio and other states where Strike 3 continues to file 1,000's of adult porn file-sharing lawsuits involving is alleged infringement of Tushy, Vixen, Blacked and other titles. 

Beware of attorneys with little to no experience in this area of law.  Also, be aware of the firms that promise you low settlements, only to fail to deliver.  You can read our past client reviews here, and our past clients' reviews can help make your decision to hire Steve Vondran, Esq. and easy one. 

Call us for a free initial consultation at (877) 276-5084 or fill out the contact form on the right side of this page, and we will contact you.