Case 2:14-cv-01819-RAJ Document 26 Filed 05/04/15 Page 1 of 7

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DALLAS BUYERS CLUB, LLC,

Plaintiff,
CASE NO. C14-1819RAJ

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v.
ORDER
JOHN DOES 1 THROUGH 10,

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Defendants.

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I. INTRODUCTION

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This matter comes before the court on two motions from non-parties requesting

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that the court quash subpoenas Plaintiff served upon them. Although Plaintiff has not yet

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had the opportunity to oppose those motions, the court GRANTS them (Dkt. ## 22, 24)

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without prejudice to re-serving the subpoenas in accordance with this order. This order

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also contains rulings relevant to the twelve other similar cases that Plaintiff has brought

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in this District.
II. BACKGROUND

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A.

Summary of the First Eight Lawsuits Plaintiff Filed

Between July 2014 and January 2015, Plaintiff filed eight essentially identical

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lawsuits. In each suit, Plaintiff named between 10 and 39 John Doe Defendants who it

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accused of infringing its copyright in the motion picture Dallas Buyers Club by

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unlawfully copying or distributing the film using peer-to-peer file sharing networks.

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ORDER 1

Case 2:14-cv-01819-RAJ Document 26 Filed 05/04/15 Page 2 of 7

At the time of filing each of the eight suits, Plaintiff could identify the John Doe

Defendants only by the IP address at which their allegedly infringing activity occurred.

Plaintiff accompanied its complaint in each of the eight suits with a motion for expedited

discovery. That motion requested leave to subpoena the internet service provider (ISP)

associated with each of the IP addresses in order to learn the identity of the subscriber

associated with each IP address. In each case, the court granted a motion giving Plaintiff

leave to serve that subpoena.

The dockets in the eight cases reflect that Plaintiffs claims against some

Defendants have progressed, whereas others are in limbo. The dockets reflect mixed

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results since the court gave Plaintiff leave to subpoena the ISP. A few subscribers whose

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information fell within the scope of the subpoenas to the ISP moved unsuccessfully to

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quash the subpoena. Plaintiff apparently uncovered information that allowed it to dismiss

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its claims against about 60 of the about 135 Doe Defendants it sued in these first eight

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lawsuits. Whether those dismissals came as a result of settlements or for another reason,

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the court can only guess.

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What the court need not guess about is that with only one exception, Plaintiff has

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not named any defendant even though these cases have been pending for at least three

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months and as many as ten months. The court will soon address the exception, but as to

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approximately 65 Doe Defendants from these first eight cases, their cases are in limbo.

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The court has little indication that Plaintiff is diligently pursuing these cases to a

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resolution. That will change following this order.

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The exception that the court mentioned to Plaintiffs choice not to name any of the

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Doe Defendants is the first of these cases (No. C14-1153RAJ), in which Plaintiff filed an

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amended complaint in November 2014 that transformed the case from one against ten

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Doe Defendants to a case against seven named Defendants and one Doe Defendant. At

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Plaintiffs request, the court entered default against one of the named Defendants.

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Although almost three months have passed since the entry of default, Plaintiff has not

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ORDER 2

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sought a default judgment. Plaintiff has dismissed its claims against three of the

remaining seven Defendants, including the sole remaining John Doe Defendant. Four

Defendants remain, and there is no indication that Plaintiff is doing anything to pursue its

claims against those four Defendants. That is perhaps in part because the court has not

issued an initial case management order. That will also change following this order.

B.

Summary of Current Litigation in Plaintiffs 13 Cases

The court mentions the mixed progress in the first eight of Plaintiffs cases for two

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reasons. First, the motions to quash in this case reflect that Plaintiff is continuing its

efforts to obtain discovery via subpoena, but is now doing so without leave of court.

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Second, Plaintiff has now filed an additional five cases, essentially identical to the first

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eight, and has filed five motions for leave to serve subpoenas on the ISP associated with

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an additional 91 Doe Defendants. This order will resolve the motions to quash, require

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Plaintiff to obtain leave of court for all subpoenas except in limited circumstances, and

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set a timetable for ensuring that all 13 of these cases, new and old, reach a resolution.

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C.

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Plaintiff May Not Subpoena Individuals Except as Rule 26(d)(1) Permits.

Before the two motions to quash now pending, the court has only once been made

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aware of Plaintiffs efforts to subpoena individuals, as opposed to ISPs. In February

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2015, the court terminated Plaintiffs ex parte motion for leave to issue subpoenas to four

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individuals whose names it had learned via a subpoena to an ISP. Case No. C14-

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1336RAJ, Dkt. # 28 (Feb. 13, 2015 ord.). Among other shortcomings, Plaintiff did not

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include the subpoenas it proposed to issue. The court also pointed out, however, that

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Plaintiff had cited no authority establishing that it needed leave of court to issue a

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subpoena before the formal commencement of discovery. Id.

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The non-parties who filed motions to quash now before the court have cited

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authority limiting Plaintiffs right to serve subpoenas. Rule 26(d) of the Federal Rules of

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Civil Procedure declares that absent a court order or other authorization, [a] party may

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not seek discovery from any source before the parties have conferred as required by Rule

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ORDER 3

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26(f) . . . . The term any source applies to non-parties as well as parties, and thus

encompasses subpoenas to non-parties. See Deuss v. Siso, No. 14-cv-00710-YGR (JSC),

2014 U.S. Dist. LEXIS 121464, at *10 (N.D. Cal. Aug. 29, 2014); Villegas v. United

States, No. CV-12-0001-EFS, 2012 U.S. Dist. LEXIS 69389, at *24 (E.D. Wash. May 16,

2012). There is no evidence that Plaintiff has conducted a Rule 26(f) conference in any

of its cases.

That Plaintiff did not have leave of court to subpoena the two individuals who

moved to quash their subpoenas is reason enough to grant those motions to quash. But

the motions raise other concerns. Both subpoenas sought documents and testimony for a

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deposition to occur on April 29. Plaintiff served one subpoena on April 21, and the other

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on April 22. Plaintiff thus gave non-parties eight days or fewer to prepare for a

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deposition. The Federal Rules impose no fixed period of notice in advance of a

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deposition. A party seeking a deposition must give reasonable written notice in

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advance. Fed. R. Civ. P. 30(b)(1), and Rule 45(d)(3)(A)(i) permits the target of a

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subpoena to object where the subpoena fails to allow a reasonable time to comply.

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These subpoenas seek documents as well as testimony. The document requests are

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hardly straightforward they seek documents identifying the users of an IP address as

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well as all documents, files or communications relating to BitTorrent file-sharing. The

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court can only guess how Plaintiff would attempt to enforce these subpoenas, but they

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arguably call for the target to produce documents that exist only within the system files of

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the targets home computer(s). Rule 34(b)(2)(A) of the Federal Rules of Civil Procedure

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ensures that a party served with a request for production of documents has at least 30

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days to respond. The rules provide no fixed period of time for a response from the target

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of a subpoena for documents, but the court is firmly convinced that the seven or eight

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days that Plaintiff provided in these instances is inadequate.

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ORDER 4

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III. ORDER

To ensure that Plaintiff proceeds with reasonable diligence to bring these cases to
a resolution, and to protect non-parties who may be subject to discovery arising from
these cases, the court orders as follows:
1) In each of the eight cases Plaintiff filed before April 2015, except Case No.
C14-1153RAJ, Plaintiff must, within 30 days of this order, either file an
amended complaint with no John Doe defendants, or file a motion for leave to
amend in which it explains why it wishes to continue to name one or more
John Doe defendants.
2) The court will issue orders permitting Plaintiff to subpoena an ISP in each of
the five cases Plaintiff filed in April 2015. Plaintiff must, within 120 days of
serving each subpoena, either file an amended complaint with no John Doe
defendants, or file a motion for leave to amend in which it explains why it
wishes to continue to name one or more John Doe defendants.
3) As to any defendant who Plaintiff has named, Plaintiff must seek the entry of
default within 30 days after the expiration of the time for that defendant to
answer or otherwise respond to the complaint. Plaintiff must seek a default
judgment or otherwise resolve its claim against a defaulted defendant within 30
days of an order entering default against that defendant. As to the defaulted
Defendant in Case No. C14-1153RAJ, Plaintiff must move for default
judgment within 30 days of this order.
4) In Case No. C14-1153RAJ, the court will enter its standard order calling for a
joint status report. In all other cases, initial case management shall occur as
follows. Within 21 days of a defendants answer or other response to
Plaintiffs complaint, Plaintiff must arrange a Rule 26(f) conference with that
defendant. Plaintiff and that defendant must file a brief joint discovery plan
within 7 days of that conference. Discovery between Plaintiff and that

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ORDER 5

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defendant will commence when the plan is filed. Once all defendants in a case

have either participated in a Rule 26(f) conference or been defaulted, the court

will issue an order calling for a joint status report, and will set a trial date and

pretrial schedule based on that report.

5) Until Plaintiff has filed a discovery plan for every defendant in a case who is

not in default, Plaintiff may not subpoena a non-party unless it obtains leave of

court. Unless the court orders otherwise, Plaintiff must allow at least 30 days

between service of a subpoena and the time for complying with the subpoena.

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6) Plaintiff shall withdraw any pending subpoena to a target other than an ISP,
although it may serve a new subpoena in compliance with this order.
7) The court will prepare a version of this order that the clerk shall issue as a

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Standing Case Management Order in each of Plaintiffs 12 other pending

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cases. Because there are no named parties in 12 of the 13 cases Plaintiff has

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filed, the individuals who Plaintiff contacts do not receive notice of the courts

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rulings. To ensure that the people who are the targets of Plaintiffs

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investigation receive notice both of the courts case management plan and of

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its intent to monitor Plaintiffs discovery requests to non-parties and unnamed

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parties, Plaintiff must provide notice of this order. In every case in which

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Plaintiff has contacted an individual (or entity) who is a potential party in a

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case Plaintiff has filed, Plaintiff must ensure that the individual (or entity)

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receives a copy of both this order and the Standing Case Management Order in

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the applicable case. This order will serve as the Standing Case Management

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Order in Case No. C14-1819RAJ.

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8) Plaintiff need not provide a copy of this order or take any further action with

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respect to any individual or entity with which it has reached a settlement or

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other permanent resolution of its claims.

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ORDER 6

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9) When Plaintiff makes a new contact with an individual or entity who is a

potential party in one of its cases, it shall as part of the initial contacts make

arrangements for that individual or entity to receive a copy of both this order

and the Standing Case Management Order in the applicable case. The court

expects Plaintiff to construe the term potential party liberally. If Plaintiff has

reason to believe that the individual or entity it contacts may be liable to

Plaintiff, Plaintiff must provide notice of this order and the applicable Standing

Case Management Order.

IV. CONCLUSION

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The court GRANTS the two motions to quash. Dkt. ## 22, 24. Plaintiff shall

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comply with the case management orders above.

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DATED this 4th day of May, 2015.

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The Honorable Richard A. Jones

United States District Court Judge

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ORDER 7