Site B v. Does 1-51, No. 13 C 5295, Slip Op. (N.D. Ills. Mar. 7, 2014) (Leinenweber, Sen. J.).
Judge Leinenweber denied Doe 39’s motion to quash a pre-discovery subpoena in this BitTorrent case involving the motion picture “Under the Bed.” At the outset, the Court noted a split in the Northern District regarding whether a Doe had standing to quash a subpoena to its Internet Service Provider (“ISP”). Regardless, a motion to quash a subpoena was not a proper vehicle for challenging misjoinder as Doe 39 did. The proper method would be a Fed. R. Div. P. 21 motion to sever.
Recognizing its inherent authority to sever, the Court then considered Doe 39’s arguments to sever. Noting a split across the country, the Court held that the Does need not all participate in the same swarm near in time to each other. The six week period used by plaintiff Site B was sufficient. The Court, however, stated that it was open to reconsidering the decision after the various Does become named defendants in the case.
Finally, the subpoena did not violate the Electronic Communications Privacy Act (“ECPA”). The ECPA prevents knowing disclosure of the content of a stored message, but allows disclosure of customer records, such as customer identity, which is what the subpoena sought. The fact that the subpoena failed to notify Comcast that the ECPA makes such disclosure voluntary, was not sufficient to quash the subpoena. Suggesting that Comcast did not know its legal rights was “frivolous.”