JULIE E. CARNES, Chief District Judge.
This matter is presently before the Court to resolve an issue that has arisen regarding the possibility that plaintiff is continuing to take discovery as to unnamed Doe defendants who were severed from the action and whose cases were dismissed without prejudice.
The plaintiff brought this copyright action, as well as eleven (11) other essentially identical actions in this district (the "Killer Joe cases"), against anonymous defendants identified only by their internet protocol ("IP") addresses. In its complaint, plaintiff asserts that the unnamed defendants "acted in a collective and interdependent manner" to unlawfully reproduce and distribute plaintiff's copyrighted work, "Killer Joe." (Compl. [1] at 14.) Plaintiff filed a motion to take discovery prior to a Rule 26(f) conference because plaintiff asserted that the only way to obtain the actual names of the alleged infringers was by subpoenaing third-party Internet Service Providers ("ISPs"), who keep the names associated with the IP addresses as part of their regular course of business. (Pl.'s Mot. for Leave (Pl.'s Mot.") [2] at 8.)
The Court initially granted plaintiff's motion for discovery, issuing an Order to that effect on May 8, 2013. It later, however, raised, sua sponte, the issue of whether the unnamed defendants were properly joined under FED. R. Civ. P. 20. (May 28 Order [4] at 2.) Specifically, in its May 28, 2013 Order, the Court found that the unnamed defendants had not been properly joined and for that reason, it severed all of the John Does, except for the first one, and dismissed the complaint against these other Does without prejudice. (Id. at 11.) Plaintiff was instructed that he could re-file an action against each John Doe, but must do so separately as to each defendant and designate the new actions as "related" to the severed action. (Id.)
On June 14, an Atlanta-area attorney, Blair Chintella, contacted the Court's deputy clerk to alert the Court that potential clients had recently contacted him regarding the Killer Joe cases. (See Attachment *1, Letter from attorney Blair Chintella.)
After this initial communication with the Court, the attorney received two more e-mails from potential clients on June 14 and provided redacted versions of these e-mails to the Court. (Attachments *3 and *4.) Both of these e-mails indicate that the potential defendants only recently received these notices from their ISPs regarding the subpoenas. One e-mail indicates the specific case involved, Killer Joe Nevada, LLC v. John Doe 1, Civ. No. 1:13-01492, and that the potential defendant received notice from his ISP on June 13, 2013. The other e-mail is silent about both of these facts. Neither e-mail indicates which number John Doe the senders of the emails were.
As noted in the Court's previous order, this present litigation is part of a wave of litigation around the country in which copyright holders attempt to assert claims against many unknown defendants by joining them into a single action. (May 28 Order [4] at 2.) Unfortunately, before the Court focused on the misjoinder problem, and then severed and dismissed Does 2-30, it had granted the plaintiff's motion for leave to take discovery in order to subpoena the names of the individuals identified by the IP addresses associated with the alleged copyright infringement. (See May 3 Order [3].) Obviously, now that this first order has been vacated and Does 2-30 have been severed and dismissed without prejudice, (May 28 Order [4]), the subpoenas are null as applied to these John Does.
The recent information provided by Mr. Chintella concerns the Court. Although the correspondence and e-mails do not conclusively show that subpoenas were being sent after May 28, at the least, they strongly suggest that plaintiff has yet to contact the ISPs to inform them of the Court's decision nullifying all subpoenas except for those directed at John Doe *1. For these reasons, the Court
Plaintiff shall ensure that this information is communicated to each ISP by
For the above reasons, plaintiff is
SO ORDERED.
Dear Your Honor:
I was recently contacted by a potential client who received a letter regarding the above case. During the consultation I checked the docket and noticed that the Court entered an order prohibiting discovery except as to John Doe #1. This person is listed as John Doe #25.
I have a lot of experience handling these types of cases and unfortunately this happens periodically; attorneys for plaintiffs do not always notify ISPs that permission to conduct discovery has been withdrawn.
This is the first potential client of this sort that has contacted me, but I wouldn't be surprised if there are others, and possibly even settlements that have already been extracted. I noticed that there were multiple cases filed by this particular defendant, and that there are multiple other cases filed by the plaintiff's lawyer on behalf of various other plaintiffs.
Please feel free to e-mail or call me if Your Honor has any questions or need any additional information.
Dear[REDACTED]
Killer Joe Nevada, LLC has filed a federal lawsuit in the United States District Court for the Northern District of Georgia. You have been identified in our records via your assigned Internet Protocol ("IP") address, which is unique to each Mternet user, in this lawsuit for allegedly Killer Joe Nevada, LLC's copyrights on the Internet by uploading or downloading content without permission. This was allegedly done using a device assigned the IP address 24.126.148.38 on 01/12/2013 07:02:55 AM GMT. The court has ordered Comcast to supply your name, address and other information Killer. Joe Nevada, LLC in the attached Order and accompanying Subpoena. The case has been assigned Docket Number 1:13-cv-01527 by the court. If you have any questions about the lawsuit, you should consult an attorney immediately.
Comcast will provide your name, address, and other information as directed in the Order and Subpoena unless you or your attorney file a protective motion to quash or vacate the Subpoena in the court where the subpoena was issued
If you have legal questions about this matter, please contact an attorney.
Plaintiff provides this [Proposed] Order to define the scope and parameters of the requested expedited discovery. WHEREFORE:
IT IS ORDERED that Plaintiff's Motion for Leave to Take Discovery Prior to Rule 26(f) Conference is granted;
IT IS FURTHER ORDERED that, subject to the protective order set out herein, Plaintiff Killer Joe Nevada, LLC ("Killer Joe Nevada") may immediately serve a Rule 45 subpoena on the ISPs listed in Exhibit A to the Complaint to obtain information to identify Does 1-57, specifically his or her name, address, MAC address, phone number, and email address. The disclosure of this information is consistent with the ISPOs' obligations under the Cable Service Privacy Act, 47 U.S.C. § 551(c)(2)(B), which provides:
The subpoena shall have a copy of this order attached;
IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service of the rule 45 subpoena upon them to serve Does 1-57 with a copy of the subpoena and a copy of this order. The ISPs may serve Does using any reasonable means, including written notice Sent to his or her last known address, transmitted either by first-class mail or via overnight service;
IT IS FURTHER ORDERED that Does 1-57 shall have 30 days from the date of service of the Rule 45 subpoena and this Order upon her or him to file any motions with this Court contesting the subpoena (including a motion to quash or modify the subpoena), as well as any request to litigate the subpoena anonymously. Should any John Doe file a motion to quash, motion for protective order, motion to dismiss, motion to sever, or similarly styled motion seeking similar relief, that specific John Doe's information will be withheld from the Plaintiff until after the Internet Service Provider to Plaintiff The ISPs may not turn over the Doe defendants' identifying information to Killer Joe Nevada before the expiration of this 30-day period. Additionally, if a defendant or ISP files a motion to quash the subpoena, the ISPs may not turn over the moving Does' information to Killer Joe Nevada until the issues have been addressed and the Court issues an Order instructing the ISPs to resume in turning over the requested discovery;
IT IS FURTHER ORDERED that the subpoenaed entity shall preserve any subpoenaed infoemation pending the resolution of any timely-filed motion to quash or other similarly styled motion;
IT IS FURTHER ORDERED that if that 30-day period lapses without a Doe defendant or ISP contesting the subpoena, the ISPs shall have 10 days to produce the information responsive to the subpoena to Plaintiff. A Doe defendant who moves to quash or modify the subpoena, or to proceed anonymously, shall at the same time as her or his filing also notify her or his ISP so that the ISP is on notice not to release that Doe defendant's contact information to Plaintiff until the Court on any such motions.
IT IS FURTHER ORDERED that, to maximize judicial efficiency, the Court will delay ruling on all Doe motions to quash, motions for protective order, motions to dismiss, motions to sever, or similarly styled motions seeking similar relief filed until all such motions have been filed. All such motions should be filed by 2013. out in order.
IT IS FURTHER ORDERED that counsel for Plaintiff will file a single opposition to all motions to quash, motions for protective order, motions to dismiss, motions to sever, or similarly styled motions seeking similar relief filed. Plaintiff's opposition is due ____________2013. 30 days after the deadline for above-described motions by John Does for the last ISP served.
IT IS FURTHER ORDERED that any John Doe who has filed a motion to quash, motion for protective order, motion to dismiss, motion to sever, or similarly styled motion seeking similar relief, it they so choose, can file a reply by _____________, 2013, IT IS FURTHER ORDERED that an ISP that receives a subpoena pursuant to this order shall confer with Killer Joe Nevada and shall not assess any charge in advance of providing the information requested in the subpoena. An ISP that receives a subpoena and elects to charge for the costs of production shall provide a billing summary and cost report to Plaintiff.
IT IS FURTHER ORDERED that Killer Joe Nevada shall serve a copy of this Opinion and Order along with any subpoenas issued pursuant to this order to the listed ISE3s. IT IS FURTHER ORDERED that any information ultimately disclosed to Hiller Joe Nevada response to Rule 45 subpoena may be used by Killer Joe Nevada solely for the purpose of protecting, investigating and resolve Killer Joe Nevada's rights as set forth in its Complaint,
To Attorney Blair B. Chintella,
My name is [REDACTED] On June 13th, 2013, received a subpoena from the United States District Court for the Northern District of Georgia via UPS. Some movie company named Killer Joe Nevada, LLC has filed a federal lawsuit on me and have identified me solely based off of an IP address assigned to my modem. Comcast sent this letter stating that the court has ordered them to supply my name, address and other information to Killer Joe Nevada, LLC in the attached Order and accompanying Subpoena. The case has been assigned to Docket Number 1:13-cv-01492 by the court. Please give me a call in reference to how this should be handled at [REDACTED]
[REDACTED]
To: bbc@chintellalaw.com
To Whom It May Concern,
Fri, Jun 14, 2013 at 3:00 PM
I have recently received notice that Killer Joe Nevada, LLC has subpoenaed my information from my ISP. I wish to quash its release; is this something that you can assist me with? Feel free to contact me at this email address or at my cell, [REDACTED] would like to set up a consultation.
Regards,
[REDACTED]
