D.C. Circuit Limits Discovery and Joinder for Downloading "Swarms"

by McDermott Will & Emery
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AF Holdings v. Does et al.

Deciding a case that involves issues of discovery and joinder, the U.S. Court of Appeals for the D.C. Circuit addressed issues presented by so-called “copyright trolls” who subpoenaed internet service providers (ISPs) requesting the identities of their subscribers, identified by plaintiff as “does” in its complaint.  AF Holdings v. Does et al., Case No. 1:12-cv-00048 (D.C. Cir., May 27, 2014) (Tatel, J.)

After AF Holdings filed suit naming more than 1,000 “does” as defendants and subpoenaed their ISPs for their identities, the ISPs refused to comply, invoking Fed. R. Civ. P. 45(d)(3)(A), which provides that a district court “must quash or modify a subpoena that . . . subjects a person to undue burden.”  The ISPs argued that the administrative expense involved was necessarily an “undue burden” because AF Holdings had failed to establish that Washington, D.C., courts would have personal jurisdiction over the defendants or that venue would properly lie in Washington, D.C.  The ISPs argued that of the 1,058 IP addresses sought, only 189 were associated with individuals who lived in Washington, D.C.  One of the providers didn’t even offer service in Washington, D.C.

The district court rejected these arguments, holding that “considerations of personal jurisdiction and joinder are premature when discovery is sought before the plaintiff has named a defendant and the discovery is targeted to identify unknown individuals associated with the IP addresses.”  The ISPs appealed.

The D.C. Circuit first considered whether considerations of personal jurisdiction were properly considered when deciding the discovery issues raised in this case.  After noting that courts have an obligation under Rule 26 to “ensure that the scope of discovery is limited to issues actually relevant to the litigation,” the D.C. Circuit held that “a plaintiff pursuing discovery of the sort AF Holdings seeks regarding unknown defendants must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant[s].”  The D.C. Circuit also applied a principle that “when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.”

When applying these two principles, the D.C. Circuit noted that AF Holdings apparently made no effort to determine which of the IP addresses were associated with Washington, D.C., residents, and thus it could not have a good faith belief of jurisdiction.  The D.C. Circuit noted that, based on this lack of effort, the names were likely sought for “reasons unrelated to its pursuit of this particular lawsuit.”  AF’s argument that many of the thousand defendants might waive venue and personal jurisdiction arguments was “speculative” and didn’t demonstrate the required good faith belief.

The D.C. Circuit next addressed the issue of joinder.  Relating the joinder issue to the propriety of the subpoenas, the court noted that seeking the identities of multiple parties that could not be properly joined in an action “cannot possibly be relevant to the subject matter involved in the action.”

The defendants in the case allegedly all used the same file sharing system (BitTorrent) to download the same movie over a period of nearly five months.  The D.C. Circuit surveyed other courts’ consideration of similar BitTorrent cases and considered whether, in this case, the defendants satisfied joinder law by being “part of the same transaction or series of transactions.”  Other courts have found that users who download the same file using BitTorrent are part of the same “swarm,” have all participated in the same series of transactions and can be properly joined.

Expanding on the law associated with the downloading “swarm,” the D.C. Circuit speculated that users who were part of “the same swarm at the same time” could be part of the same series of transactions for proper joinder.  Joinder was clearly improper in this case, however, because AF Holdings was attempting to join defendants who performed acts over a period of nearly five months: “[s]imply committing the same type of violation in the same way does not link defendants together for the purposes of joinder.”

The D.C. Circuit vacated the discovery order and remanded the case for further proceedings.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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