TEXAS—Three of the more proactive mass-John Doe litigating porn studios have sued Verizon in federal court arguing the service provider should be held in contempt for its refusal to respond to third party subpoenas issued to it for the names and addresses of alleged copyright infringers.
"Plaintiffs seek Verizon’s immediate compliance with Court-authorized subpoenas requiring it to produce identifying information for certain of its customers currently identified only through their Internet Protocol (“IP”) addresses and Internet Service Providers (“ISPs”) as having infringed Plaintiffs’ copyrights," reads the complaint, which was filed Nov. 19 in the northern district of Texas. "Plaintiffs intend to use the subpoenaed information to name and serve these persons as defendants in copyright infringement cases. Without the identifying information, Plaintiffs cannot name and serve these persons, and therefore have no remedy for the infringement they have suffered and continue to suffer."
The rest of the 21-page complaint, filed by Malibu Media, Patrick Collins and Third Degree films, counters the various objections made by Verizon, all of which "lack merit," according to the plaintiffs.
The first objection claims misjoinder by the plaintiffs, who responded with three reasons why the argument fails: Verizon lacks standing to object based on misjoinder; misjoinder is not a basis to reject a third party subpoena; and joinder was in fact appropriate in the unlderlying cases.
"Verizon’s second objection is that Complaints’ allegations supposedly 'refute' th eallegation that the subscribers were acting 'in concert, given the time period during which [Plaintiffs’] digital content was allegedly accessed,'" the complaint continues. "Verizon’s objection fails because, as argued above, Verizon lacks standing to raise objections based on misjoinder, which in any event have no merit in this case."
Verizon's third objection was that the plaintiffs "made “no attempt” to make a prima facie showing that personal jurisdiction exists over the Doe defendants. The plaintiffs countered that the argument fails on five grounds:
* "First, and contrary to Verizon’s objection, Plaintiffs have clearly made a prima facie showing of personal jurisdiction in their complaints."
* "Second, Verizon lacks standing to raise this objection because it is not a party."
* "Third, a 'lack of personal jurisdiction… [is] not delineated under Federal Rule of Civil Procedure 45 as [a basis] to quash a subpoena issued to a third-party.'"
* "Fourth, Plaintiffs 'need not establish personal jurisdiction' when filing their complaints."
* "Fifth, 'it would be premature to consider the exercise of personal jurisdiction over unknown individuals when neither the Court nor the plaintiff is able to evaluate a specific individual’s ties to the [district at issue].'"
Verizon’s fourth objection was that the information sought by the subpoenas is “neither relevant nor reasonably calculated to lead to the discovery of relevant information,” and imposes an “undue burden” on Verizon.
"Verizon’s objection on these bases,' the complaint states, "is wholly without merit... Obviously, the identifying information sought for the Doe Defendants, e.g., name, address, telephone number and email address, is not only relevant, but crucial to Plaintiffs’ case.
Regarding the undue burden claim, the plaintiff's argue, "Beyond asserting this 'bare bones' objection, Verizon fails to provide any detail as to 'Verizon’s cost of complying with the Plaintiffs’ subpoenas, the time associated with producing the requested information, or the procedure by which the information is obtained and released.'" The burden, they further contend, is "minimal."
Verizon’s fifth objection "is that Plaintiffs have allegedly made an 'insufficient showing that the subpoenaed information would be used for a proper purpose in the underlying cases."
"However," countered the plaintiffs, "Verizon fails to present any evidence or argument that the subpoenas fall within any of the categories of 'improper purposes' under Fed. R. Civ. P. 26(g), “such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
"To the contrary, and as argued above," the continue, "the 'purpose' of the discovery is entirely proper: to obtain information identifying unknown Doe Defendants infringing Plaintiffs’ copyrights in order to consider whether to name and serve them as defendants."
Verizon’s sixth objection "argues without support that the subpoenas seek 'information that is protected from disclosure by third parties’ rights of privacy and protections guaranteed by the First Amendment.'"
"Verizon’s objection fails," the plaintiff's assert, "in light of Plaintiffs’ countervailing rights."
Verizon’s final objection argues "with no detail that the subpoenas seek to impose on Verizon obligations 'different from, or greater than,' those required by the Federal Rules of Civil Procedure or the Local Rules."
But the plaintiffs retorted, "Verizon’s boilerplate objection is clearly inapplicable to this case. The subpoenas do not exceed any applicable rules. Instead, and as established above, the subpoenas seek information over which Verizon has exclusive custody and control, and which is crucial to the establishment of Plaintiffs’ cases for copyright infringement. Verizon’s objection thus has no merit and should be overrule."
In conclusion, the complaint asked the court to overrule Verizon on all of its objections, order immediate compliance with the subpoenas and find Verizon in contempt, in addition to any other relief "the Court deems just and proper."
The complaint can be read here.