Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, Slip Op. (N.D. Ill. Aug. 27, 2012) (Tharp, J.).
Judge Tharp denied Doe defendant’s motion to quash a subpoena seeking his identifying information from his cable provider in this BitTorrent copyright case, but allowed the Doe to proceed in the suit using a pseudonym. The Court also denied Doe’s motion to sever the Doe defendants. As an initial matter, while a party to a suit usually has no standing to move to quash a third party subpoena, there is an exception in cases such as this one where the subpoena implicates that party’s privacy. But Doe’s motion to quash was based upon an argument that the 75 Does were not properly joined. That, however, is not a valid ground for quashing a subpoena.
Plaintiff Sunlust’s joinder was not inappropriate in this case, despite district courts’ increasing concern regarding improper joinder of multiple Does in pornographic downloading cases around the country. Sunlust alleged that each Doe participated simultaneously in a single BitTorrent “swarm” and that the Does were sharing portions of the file between themselves as a part of that process. A swarm is the collective act of downloading a particular file. And joinder was further supported by Sunlust’s civil conspiracy claim alleging that the Does, as part of a single swarm, were engaged in a conspiracy to unlawfully distribute the copyrighted movie. Furthermore, the Does faced common legal and factual questions regarding Sunlust’s copyright claims.
In order to avoid abusive litigation tactics, the Court ordered that Sunlust only contact Doe through counsel and that Doe could proceed using a pseudonym, at least during discovery.