ORDER RE DEFENDANT'S MOTION TO QUASH SUBPOENAS

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this copyright infringement action involving alleged piracy of pornographic videos on the Internet, plaintiff served five third-party subpoenas on companies that operate online public forums allegedly used by defendant. Defendant moves to quash the subpoenas. For the reasons stated below, defendant's motion is DENIED.

STATEMENT

The facts of this case have been set forth in prior orders and need not be set forth in full here (Dkt. Nos. 44, 34). Briefly, plaintiff Malibu Media, LLC, a maker and distributor of pornographic videos accuses defendant John Doe Subscriber Assigned IP address 76.126.99.126 of using his Internet connection to download, copy, and distribute twenty-three of its copyrighted works using the BitTorrent file-sharing protocol. (Malibu Media has obtained defendant's identity, but his identifying information is subject to a protective order and need not be used in this order.)

Throughout discovery, defendant, who is represented by Attorneys J. Curtis Edmondson and Robert Steven Robinson denied nearly every material allegation in this case. For example, he responded to one interrogatory by stating, "No. I have not knowingly downloaded a song, movie, game software program or computer file using BitTorrent or any Peer-to-peer file-sharing program" (Pl.'s Exh. A, Response to Interrogatory No. 13). In response to another interrogatory asking if he has "ever searched for any torrent file on the Internet," he responded, "No" (id., Response to Interrogatory No. 17). In response to another interrogatory asking if he had every watched adult content such as pornography, he averred "I watched adult content twice in high school" (id., Response to Interrogatory No. 18). Finally, defendant generally described his experience with computers as basic and introductory (id., Response to Interrogatory No. 3).1

Malibu Media's forensic computer analyst, Patrick Paige, examined three hard drive images produced by our defendant. In that investigation, he allegedly found evidence of other hard drives that have not been turned over (Paige Rpt. ¶ 42). In his examination, Paige discovered that the user name [REDACTED\] and the email address [REDACTED\] were both saved in auto-fill settings on one of defendant's hard drives, and that the user name [REDACTED\] had been used to log into Overclock.net, a website operated by Wikia Inc. Paige also found that defendant used that hard drive to access an email account with the address [REDACTED\] (Paige Rpt. ¶¶ 31-32).

Malibu Media also contends that the user identified as [REDACTED\] posted about purchases he made, his job, and his residence, all of which comport with evidence already produced in discovery. But Malibu Media fails to produce the corroborating evidence at all, much less supported by a sworn record. Accordingly, this order does not consider that contention as a basis for the relevance of information relating to [REDACTED\].

Malibu Media served subpoenas on four companies that host websites containing public forums with posts appearing to have originated with our defendant's accounts. Specifically, it served subpoenas on (i) Wikia Inc., which operates the website Overclock.net, (ii) VerticalScope USA Inc., which operates the website SocialAnxietySupport.com, (iii) Piriform, Inc., which operates the website Piriform.com, and (iv) Interactive Life Forms, which operates the website Fleshlight.com. The subpoenas seek records of all IP addresses associated with the username [REDACTED\], records of the personal identifying information for that username, all postings on the respective website, records of the total number of posts by [REDACTED\] as of the date Malibu Media accessed the respective website, and records of any posts deleted since that date (Edmondson Decl., Exhs. 2-5). Here are several examples of posts made by [REDACTED\] on the above-named websites:2

In May 2012,[REDACTED\] posted about his usage of torrents (the files used to initiate a download on the BitTorrent protocol) (id. at 3) (ellipsis and errors in original):

In a post in July 2012 on SocialAnxietySupport.com, [REDACTED\] identified [REDACTED\] [REDACTED\] and [REDACTED\] as three things he was addicted to (id., Exh. C at 26).

In a post on Fleshlight.com, [REDACTED\] responded to the question [REDACTED\] as follows, in pertinent part (id., Exh. D at 2) (errors in original):

Malibu Media identifies numerous other posts by the user [REDACTED\] on the forgoing websites and others, not set forth in detail in this order, many of which refer to masturbation, pornography, voyeurism, downloading television shows and movies, torrents, building his own computer, and ownership of computers with specifications different from those produced in discovery.

Malibu Media also served a fifth subpoena on Microsoft Corporation, which operated the email server, live.com, which Paige attributed to our defendant. In addition to seeking the same information sought from the online forums, Malibu Media also sought records of devices associated with the [REDACTED\] account and the specifications thereof, the history of searches with specific terms relating to torrents and Malibu Media's website on Microsoft's search engine by the user of that account, records of deletion by that account of search history between November 2015 and now, and billing information (Edmondson Decl., Exh. 1).

Defendant moves to quash the subpoenas. This order follows full briefing and oral argument.

ANALYSIS

Rule 45(d)(3)(A) provides several bases for quashing a subpoena. Notably for our purposes, a subpoena must be quashed or modified if it "subjects a person to undue burden." Additionally, any discovery subpoena remains subject to the relevance requirements of Rule 26.

Here, compliance with these subpoenas would not cause plaintiff undue burden, and plaintiff offers no evidence that this would cause any of the recipients undue burden. (Indeed, the fact that no recipient of a subpoena has moved to quash implies that no undue burden would be suffered.) Thus, this order only addresses the question of relevance.

Defendant argues that the subpoenaed information is irrelevant, because he never posted about Malibu Media's content. Furthermore, he argues that any request should be tailored to the period of infringement, rather than open-ended. Defendant ignores the fact that Malibu Media has a right to develop circumstantial evidence as well as impeachment evidence, which may not necessarily pertain to Malibu Media's videos. Indeed, as the examples set forth above show, a user with the name [REDACTED\] made numerous statements that would directly contradict defendant's own statements in response to interrogatories, if [REDACTED\] was our defendant.

True, many of the most salient statements came years before the period of infringement, and some might fall in the category of inadmissible habit or character evidence. But defendant's earlier posts may impeach his often absolute and unequivocal denials. Moreover, the subpoenaed information may lead to information about additional hard drives that defendant failed to produce. Defendant's relevance arguments are simply unavailing.

Nor is defendant's argument that he himself can provide the subpoenaed information persuasive. Given defendant's outright denials, these subpoenas may be the only means for Malibu Media to authenticate the posts by [REDACTED\]. (In fact, there is no indication that our defendant admits to using the [REDACTED\] account.) Moreover, to the extent deleted posts can be recovered at all, there is little reason to believe that our defendant would actually have maintained records of those posts.

Defendant vaguely refers to the "Anonymous Speech Doctrine" but cites no authority relating to anonymous speech that would prohibit the instant subpoena on that basis. Counsel for Malibu Media state that they have "not been able to locate any caselaw or authority explaining or citing to the Anonymous Speech Doctrine, nor has Defendant provided any in support" (Pl.'s Opp. at 13). The "Anonymous Speech Doctrine" appears to be academic shorthand for a collection of decisions that balanced the private interest of anonymity against the public interest in disclosure, though no court has referred to such a "doctrine." Defendant abandons this argument in his reply. This order will not guess at the substance of defendant's unsupported argument.

Defendant also argues that the subpoena on Microsoft violates the Stored Communications Act because "Microsoft is statutorily prohibited from revealing email communications" (Def.'s Mtn. at 6). But Malibu Media does not seek email communications. Defendant also abandons this brief argument in his reply. Additionally, to the extent the subpoenas are directed at any communications covered by the Stored Communications Act (beyond the "emails" mistakenly identified by defendant), the recipients of the subpoenas remain free to raise this concern.

Defendant also argues that Malibu Media was required to affirmatively seek leave to serve the third-party subpoenas at issue herein. Specifically, he contends that the order granting leave to serve a third-party subpoena on defendant's Internet service provider required Malibu Media to seek leave to serve any third-party subpoenas on any provider of any service. He cites the following paragraph from the order (Dkt. No. 12):

Plainly, defendant's interpretation of that order is incorrect. Malibu Media sought leave to subpoena on Comcast because it was required to do so by law. The order made clear that, despite the language in Malibu Media's proposed order, it did not have blanket authority to serve more Internet service providers for whom it had not yet offered any basis for serving a subpoena. The order did not impose a requirement to seek leave to serve beyond that imposed by the law. Defendant's argument to the contrary is rejected.

Nevertheless, Malibu Media appears to seek to embark on a fishing expedition with regard to Microsoft's records of defendant's online postings using his live.com email address, inasmuch as it has failed to identify even a single probative item it expects to find on such forums, to the extent any such forums exist. Similarly, Malibu Media has offered no indication whatsoever of the importance of the Piriform.com subpoena. (Indeed, except to note that it has sent a subpoena to Piriform, Malibu Media does not mention that company at all.)

Rule 26 now requires discovery to be "proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Malibu Media's failure to even address the importance of certain aspects of its proposed discovery is fatal as to those issues. Malibu Media's request for "online postings" from Microsoft and its entire request from Piriform.com are simply out of proportion with the needs of this case (on the present record). Therefore, the subpoenas must be quashed to that extent only.

CONCLUSION

For the reasons stated above, defendant's motion to quash is DENIED as to the subpoenas served on Wikia Inc. (Overclock.net), VerticalScope USA Inc. (SocialAnxietySupport.com), and Interactive Life Forms (Fleshlight.com), GRANTED IN PART AND DENIED IN PART as to the subpoena served on Microsoft Corporation (Live.com), and GRANTED as to Piriform, Inc. (Piriform.com).

In a separate filing after filing his reply, defendant raised several evidentiary objections. Notwithstanding the fact that Civil Local Rule 7-3(c) requires "[a]ny evidentiary and procedural objections to the opposition must be contained within the reply brief or memorandum," defendant's evidentiary objections are of no moment here. To the extent there is any merit to the objections, this order assumes that Malibu Media will be able to offer the cited facts in an admissible form on summary judgment or at trial. Moreover, Malibu Media need not rely on admissible evidence to support its argument that the subpoenaed materials are discoverable. Accordingly, defendant's objections are OVERRULED.

This order will be temporarily filed under seal, visible only to the parties. By DECEMBER 23 AT NOON, any party wishing to redact portions of this order shall submit a motion supported by sworn statements explaining good cause for redacting any portion of the order. The motion shall include a proposed redacted version and may not rely on the protective order already in place.

IT IS SO ORDERED.