United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
On April 11, 2015, plaintiff Malibu Media, LLC ("Malibu") filed suit against "John Doe subscriber assigned IP address 126.96.36.199, " for violation of the Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq. ECF 1 at 1. The case involves allegations that a defendant known only by the Internet Protocol ("IP") address of his computer infringed upon plaintiff's copyright. Id. ¶ 10. In its Complaint, plaintiff alleged that defendant's Internet Service Provider ("ISP") could provide the identity of the defendant. Id. ¶ 11.
Accordingly, on the same day Malibu filed its Complaint, it also filed a "Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference" (ECF 6, "Subpoena Motion"), supported by exhibits and a memorandum of law. ECF 6-1, "Memo." In the Subpoena Motion, Malibu sought to serve defendant's ISP with a subpoena requesting defendant's "name, address, telephone number, and e-mail address." ECF 6-1 at 4. By Order of April 13, 2015, I granted plaintiff's Subpoena Motion. ECF 9.
Now pending is defendant's "Motion to Quash Subpoena, " pursuant to "Rules 21 and 45(c)(3) of the Federal Rules of Civil Procedure" (ECF 11, "Motion"), supported by a memorandum. ECF 11-1, "Memo." Defendant argues: "The Subpoena issued by the Plaintiff to [defendant's ISP] should be quashed by this Court on the basis that disclosure pursuant to the Subpoena violates the Electronic Communication Privacy Act (ECPA') codified at 18 U.S.C. §§ 2701-2703 (2011)." ECF 11 at 2. More specifically, defendant asserts: "The use of a Rule 45 subpoena in a civil lawsuit to compel an electronic communication provider to disclose records relating to a subscriber can hardly be considered voluntary and therefore is not in accord with [18 U.S.C.] § 2702." ECF 11-1 at 3. Section 2702 is titled "Voluntary disclosure of customer communications or records." Id. at 2-3.
Malibu opposes the Motion. ECF 12 ("Opposition"). It argues that "section 2702(c)(6) of the ECPA expressly permits disclosure of [ISP] subscriber records to non-government entities" (ECF 12 at 2), and that "numerous courts in this District have expressly rejected Defendant's argument and found that Section 2702 of the ECPA permits disclosure of the John Doe Defendant's subscriber information in response to a Rule 45 subpoena." Id. at 3 (citing CineTel Films, Inc. v. Does 1-1, 052, 853 F.Supp.2d 545, 556 (D. Md. 2012) (Motz, J.); Patrick Collins, Inc. v. Does 1-11, AW-11-01776, 2011 WL 5439045, at *4 (D. Md. Nov. 8, 2011); Patrick Collins, Inc. v. Does 1-22, AW-11-01772, 2011 WL 5439005, at *5 (D. Md. Nov. 8, 2011)). Defendant has not replied, and the time to do so has now passed. See Local Rule 105.2.
No hearing is necessary to decide the Motion. See Local Rule 105.6. For the reasons that follow, I will deny the Motion.
Fed. R. Civ. P. 45(d)(3) states that, on "timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Although defendant does not specify under which part of Rule 45(d) he asks the Court to quash the subpoena, it appears his argument is based on subpart (iii), which prohibits disclosure "of privileged or other protected matter."
Defendant does not explain, and it is not clear to the Court, why his motion is also brought "pursuant" to Fed.R.Civ.P. 21. See ECF 11 at 1. Rule 21 states in its entirety:
Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
Perhaps defendant believed his reference to Rule 21 would stand as a request to dismiss defendant as a party. If that was his intent, the request is denied, because defendant has provided no argument whatsoever as to why defendant "John Doe subscriber assigned IP address 188.8.131.52" should be dismissed as a party.
In relevant part, 18 U.S.C. § 2702 states (emphasis added):
§ 2702. Voluntary disclosure of customer communications or records
(a) Prohibitions.-Except as provided in subsection (b) or (c)-
(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication ...