F.R.C.P Rule 45 Explained – Motion to Quash ISP Subpeona

NO, it is not called a “!” : )

Introduction

Our firm handles software audits, copyright bully defense, and we represent copyright rights holders in a wide variety of legal transactions from drafting and reviewing agreements, drafting website terms of use, and serving as DMCA copyright agent.  This blog, however, discusses a legal issue that comes up in Bittorrent Defense cases dealing with illegal download of movies (such as those from Malibu Media or London is Falling or Dallas Buyer's Club), or the RIIA recording industry that policies music piracy online.  In these types of cases, and also in cases where software companies are suing for illegal sales of their software, or willful infringement, a “subpoena” may be served on your ISP (Internet Service Provider) or could be served directly on an individual or officer or director of a company.  When that happens, the best thing to do is call an business and IP attorney to see what the best strategy is to respond, and explore whether filing a “motion to Quash the subpoena” is the way to go.  This blog will discuss this legal concept in general terms.

What is a Subpoena?

A subpoena is basically an order of the Court to appear and testify or produce documents at a certain time and a place.  Failure to respond could result in “contempt of Court” proceedings, which could involve fines, fees, and possibly jail time.  The subpoena is simply put just a document, that is the product of a law firm seeking to file a lawsuit (ex. a Plaintiff), against a Defendant (sometimes a “DOE Defendant”) when the Plaintiff is not aware of the name and identity of a defendant – which often happens in a Bittorent defense case, such as an illegal music or video download).  The subpoena must be properly served, and must meet the technical requirements of a subpoena (ex. name the issuing court, and identify the case number of the lawsuit).  Under federal law, there are also some rules that could come into play such as the “100 mile rule” which we will discuss below.  So in reality it is a document telling you to do something, produce documents, or possibly show up to testify.

Watch Attorney Explain Subpoenas being issued in regard to Copyright Infringement and Bitorren Defense Cases

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What should you do if you receive a subpoena or Notice of Copyright Infringement from your ISP?

If you have received a subpoena or a notice of subpoena from your ISP or other third party, here are some general tips to consider:

1.  Do not talk to anyone except a lawyer.  Do not start telling everyone about your case and what's going on.  This could be a very serious and devastating case that could significantly impact your legal rights.
2. Do not run out and destroy any evidence that you believe may be involved.  This could also cause potential problems.
3. Call a business, real estate or IP attorney (such as a general civil litigation firm such as ours) and discuss your legal rights and set forth a sstrategy to respond.  You may be nothing more than a witness in a case, or worse, you could be the target of a lawsuit.  This is the best time to get an attorney involved as soon as possible so that you can explore whether or not you want to (a) ignore the subpoena (b) file a motion to quash, or (c) file a motion for a protective order.

We can help you, call our subpoena hotline now at (877) 276-5084.

Grounds to Quash a subpoena in Federal Court

Copyright infringement lawsuits are generally brought in federal court.  When in federal court, (such as the Central District – covering Hollywood and the entertainment industry, or Northern District Court – generally covering Silicon Valley, San Francisco, and the technology industry), the Federal Rules of Civil Procedure will apply (F.R.C.P.).  Specifically, rule 45 addresses the technical requirements of serving a subpoena and lays out various grounds where the court “may” or “must” quash a subpoena, such as one served on your internet service provider.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where compliance is required must 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.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information;

or

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

Typical companies & products that file federal copyright cases for online infringement

For a detailed list click on our .

Can you seek sanctions for an improper subpoena?

See ability to get judgment and sanctions and attorney fees against Plaintiff improperly filing and serving a subpoena.

Under 17 U.S.C. 505:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.

Contact a Federal Copyright, Software & Subpoena Defense Law Firm

If you were served a subpoena or got a notice of copyright infringement from your ISP (ex. Cox, Time Warner, etc.) and the Subpoena suggests that a Plaintiff in a federal court lawsuit has your IP address, (and they are seeking your name, address, and possibly other information) contact us to discuss your legal rights, options and strategy.  Do not delay as time is of the essence in these types of cases, especially if revealing your identity will reveal that you have significant assets worth going for such as equity in your real estate, stocks, vehicles, or other assets that may motivate a Plaintiff to drag you through a federal court seeking to hit you with a $150,000 damage per infringing goods, plus costs and attorney fees.  We have helped many companies across the United States in federal copyright and trademark legal issues.

We offer free initial consultations and many (pre-litigation cases) can be offered on a flat rate fee basis.  When it comes to these kinds of cases, experience matters, do not trust your case to a rookie firm that cannot validate its federal court experience.  Call (877) 276-5084