Last Friday, Magistrate Judge Tafoya released a much awaited Order on several motions that were filed by “joint tortfeasors” in Sunlust Pictures, LLC v. Cisa, No. 1:12-cv-00656-CMA-KMT (D. Colo.).

Case Background

Prenda Law, using local counsel Timothy Anderson, filed the original Complaint in this action against a single John Doe Defendant and alleged identical causes of action against 1,385 other individuals identified as “joint tortfeasors.”  Prenda Law then obtained an order allowing it to seek expedited discovery of both the John Doe Defendant’s and the joint tortfeasors’ identities from their ISPs.  In true Prenda Law fashion, these subpoenas were issued from the Northern District of Illinois and the District of Columbia, both of which jurisdictions lack any relation to the Defendant, joint tortfeasors, or third-party ISPs.

Tamaroff & Tamaroff filed a motion on behalf of a joint tortfeasor seeking the court to dismiss the action, issue a protective order, and/or reconsider its prior order granting expedited discovery.  The motion also contained an implied request to proceed anonymously. Other joint tortfeasors had also filed motions to quash, dismiss, and issue protective order.  While the motions were pending, Sunlust obtained the identifying information of the single John Doe Defendant and amended the Complaint accordingly, but as of this time the named defendant has not yet been served and regularly scheduled discovery has yet to commence.

The Order

1. Request to Proceed Anonymously. While acknowledging that it is unusual for a party to proceed under pseudonym, the court recognized that there are situations when doing so is appropriate.  Acutely aware of the factual circumstances surrounding the motion, the court permitted the movants to proceed anonymously, reasoning that: “Requiring Movants to proceed without anonymity would effectively moot the very relief they seek and would provide Plaintiff a ‘backdoor’ route to the information sought through the subpoenas issued to Movants’ ISPs.  Moreover, assessing these preliminary matters without knowing the Movants’ identifies [sic] will not cause Plaintiff any cognizable harm.”  In a footnote, the Court further opined that the only effect of preventing the movants from appearing anonymously would be allowance of the Plaintiff to leverage the threat of embarrassing public disclosure into forcing a settlement.
2. Motions to Dismiss and/or for Severance.  The court denied all motions to dismiss and/or sever the claims brought against the Defendant and “joint tortfeasors” because the movants had yet to be named as defendants in the case.  However, it is interesting that in a later footnote the court pointed out that “a number of courts have held that ‘a state law civil conspiracy claim is preempted by the Copyright Act.”
3. Motions to Quash and/or Issue a Protective Order.  The court found that quashing the subpoenas under Rule 45(c)(3) would be procedurally improper.  The court noted that under Rule 45 only the issuing court may quash or modify a subpoena. This was likely motivation behind Prenda Law’s issuance of the subpoenas from distant forums with no connection to the litigants or relevant third-parties.  The court was equally dismissive of its ability to issue a protective order.  The court found that it was procedurally improper to issue a protective order under Rule 26(c) because movants were not yet parties and the discovery was being sought from their ISPs.  Further, the court noted that a protective order under 30(d) was also procedurally improper because the subpoena was strictly for production of documents rather than a deposition.
4. Motion for Reconsideration.  The court determined that equity favored allowing the non-party movants standing to seek reconsideration of an order that directed their non-party ISPs to disclose their personally identifying information.  The court then found that it erred in concluding that Plaintiff had demonstrated good cause to conduct early discovery into the alleged ‘joint tortfeasors’ identities.  The court recognized that the joint tortfeasors are not named in either the original nor amended complaint and their personally identifying information is not necessary to serve the named defendant.  The court dismissed Plaintiff’s assertion that the expedited discovery was necessary to prevent the ISPs from destroying the joint tortfeasors’ identifying information because “unless and until Plaintiff actually names the alleged ‘joint tortfeasors’’ as defendants, and sets forth sufficient facts to permit their joinder in this action, information relating to the [sic] their identities is irrelevant to Plaintiff’s claims… In other words, Plaintiff can prove its allegations of civil conspiracy and contributory infringement against Defendant Cisa without obtaining the ‘joint tortfeasors’’ identities.”  Finally, the court recognized the common sense that “if the threatened harm was indeed ‘ongoing’ and ‘irreparable,’ Plaintiff would have at least attempted to name the ‘joint tortfeasors’ as defendants by now.

The Relief

“The Order Granting Early Discovery (Doc. No. 10) is VACATED to the extent it grants Plaintiff leave to conduct expedited discovery as to Defendant’s “joint tortfeasors.”  All outstanding subpoenas seeking discovery as to the non-party “joint tortfeasors” are hereby QUASHED…. Insofar as any personal identifying information of the non-party “joint tortfeasors” has already been provided to Plaintiff from the “joint tortfeasors’” ISPs, Plaintiff is prohibited from further communicating with these subscribers.”

Case Documents

[1] Complaint, Sunlust Pictures, LLC v. Doe (1:12-cv-00656-CMA-KMT)

[6] Pl.’s Mot. for Expedited Disc., Sunlust Pictures, LLC v. Doe (1:12-cv-00656-CMA-KMT)

[7] Pl.’s Mem. in Supp. of Pl.’s Mot. for Expedited Disc., Sunlust Pictures, LLC v. Doe (1:12-cv-00656-CMA-KMT)

[10] Order on Pl.’s Mot. for Expedited Disc., Sunlust Pictures, LLC v. Doe (1:12-cv-00656-CMA-KMT)

[15] Tamaroff Law’s Mot. to Dismiss, Issue Protective Order, & for Reconsideration, Sunlust Pictures, LLC v. Doe (1:12-cv-00656-CMA-KMT)

[53] Pl.’s Resp. to Tamaroff Law’s Motion, Sunlust Pictures, LLC v. Doe (1:12-cv-00656-CMA-KMT)

[64] Tamaroff Law’s Reply to Pl.’s Response, Sunlust Pictures, LLC v. Doe (1:12-cv-00656-CMA-KMT)

[90] First Amended Complaint, Sunlust Pictures, LLC v. Cisa (1:12-cv-00656-CMA-KMT)

[94] Order on Tamaroff Law’s Motion to Dismiss, Issue a Protective Order, & for Reconsideration, Sunlust Pictures, LLC v. Cisa (1:12-cv-00656-CMA-KMT)