The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: OUTSTANDING MOTIONS, EXPEDITED DISCOVERY, AND BELLWETHER TRIAL
In Verdi's opera, A Masked Ball, the King is told that conspirators intend to kill him. Not knowing their names, the King consults the gypsy fortune teller, Ulrica, who gives him a clue as to the identity of one of the conspirators. In these cases, similar to many cases throughout the United States, Plaintiff Malibu Media, Inc. alleges that it owns copyrights in certain motion pictures and that unknown defendants have infringed those copyrights by using a peer-to-peer client sharing program, known as BitTorrent, to download the motion pictures without paying royalties to Plaintiff.
I. Plaintiff's Allegations and Procedural Background
Now that the internet and the Federal Rules of Civil Procedure have replaced fortune tellers as a means of securing information, Plaintiff has invoked Rule 45 to secure the identities of the defendants from their respective internet service providers ("ISPs"). Plaintiff has designated all defendants as "John Does" because Plaintiff does not know their identities. The allegations as to all John Does are identical. There are 14 to 22 John Does in each of these cases. Plaintiff asserts that all of the John Does sued in each case reside in this District and are properly joined under Rule 20(a) of the Federal Rules of Civil Procedure.
Each of the John Does is identified only by an internet protocol ("IP") address assigned by an ISP, as set forth in Exhibit A to each Complaint. Plaintiff commenced these cases on April 19, 2012. Shortly after filing the Complaints, Plaintiff filed Motions to Serve Third-Party Subpoenas on the ISPs -- typically, Comcast Cable or Verizon Internet Services -- pursuant to Rule 45 of the Federal Rules of Civil Procedure. The subpoenas require the ISPs to provide Plaintiff with the names and addresses, as well as additional identification information, of the John Does, so that Plaintiff can serve each with process.
In support of its Motions, Plaintiff submitted a detailed memorandum of law asserting that service of the third-party subpoenas on the ISPs was the only way to secure the identities of the John Does. Plaintiff asserts, correctly, that the allegations in the Complaints present prima facie claims of copyright infringement. Moreover, Plaintiff has identified specific information that would allow for limited discovery by means of a Rule 45 subpoena to the ISPs. Specifically, Plaintiff submitted a declaration of one Tobias Fieser, a forensic investigator, who describes, in considerable detail, the methodology that was used to identify the IP address of each John Doe.
As an exhibit to each motion, Plaintiff also resubmitted Exhibit A to each Complaint, which contains the IP address of each John Doe, the city in which the address is located, the date and time of the infringing activity associated with the address, and the ISP of the address. All of the IP addresses are located in cities within this District. The dates of the infringing activity in each of the three captioned cases took place over the course of a few months.
On May 15, 2012, this Court granted Plaintiff's Motions in substance, but imposed a number of conditions on the service of the third-party subpoenas. In particular, the Court ordered that the subpoenas be accompanied by a statement of rights under Rule 45 to inform the subscribers of their procedural rights to challenge their obligation to provide the information sought by the subpoenas. See Malibu Media, Inc. v. John Does 1-16, No. 12-cv-2078, ECF No. 8 (E.D. Pa. May 18, 2012); Malibu Media, Inc. v. John Does 1-14, No. 12-cv-2084, ECF No. 8 (E.D. Pa. May 18, 2012); Malibu Media, Inc. v. John Does 1-22, No. 12-cv-2088, ECF No. 8 (E.D. Pa. May 18, 2012).
Since that time, it appears that Plaintiff has served the subpoenas allowed by this Court on the ISPs, and has received information enabling Plaintiff to serve the Complaints on certain John Does. However, the record does not show that Plaintiff has, in fact, served a Complaint on any John Doe.*fn1
II. Summary of Motions Presently Before the Court
In the three captioned cases, six John Does filed separate motions challenging their obligation to provide the information sought by the subpoenas. One of those motions was later withdrawn. See Malibu Media, Inc. v. John Does 1-22, No. 12-cv-2088, ECF No. 26 (E.D. Pa. Sept. 14, 2012). Thus, five motions are currently pending before the Court. The table below describes each of these motions along with any supporting documentation that was submitted.
MOVING PARTY TITLE OF MOTION SUPPORTING DOCUMENTATION
Malibu Media, LLC v. John Does 1-16, 12-cv-2078 John Doe #16 Motion to Dismiss and/or Sever Memorandum of law. Complaint and, in the Alternative, Motion to Quash Subpoena (ECF No. 9). Malibu Media, LLC v. John Does 1-14, 12-cv-2084 John Doe #6 Motion to Quash Subpoena and/or Sworn declaration taken subject to Sever (ECF No. 12). the penalties against perjury (ECF No. 13).
Malibu Media, LLC v. John Does 1-22, 12-cv-2088 John Doe #1 Motion to Dismiss and/or Sever Memorandum of law and unsworn (pro se) Complaint and Quash Subpoena declaration by anonymous third (ECF No. 14). party.
John Doe #13 Motion to Dismiss and, in the Memorandum of law. (pro se) Alternative, to Issue a Protective Order and Motion for Leave to Proceed Anonymously (ECF No. 9).
John Doe #14 Motion to Vacate Order Granting Memorandum of law. Leave to File Subpoena, to Quash Subpoena, and, Alternatively, for Protective Order (ECF No. 10).
As the table indicates, two John Does filed declarations in support of their motions. In Civil Action No. 12-2088, John Doe #1 filed an unsworn declaration by an anonymous individual, entitled "Declaration to Refute Information Provided by Plaintiff's Counsel Christopher Fiore, 14 May 2012 hearing."*fn2 This declaration, which is 15 pages long, goes into great detail about the BitTorrent software and contains facts, which assuming they are true, refute many allegations in the Complaints and/or Plaintiff's Motion for Leave to Serve Third-Party Subpoenas. Among other things, the declaration asserts that Plaintiff has brought suit against numerous unnamed defendants simply to extort settlements, that the BittTorrent software does not work in the manner Plaintiff alleges, and that a mere subscriber to an ISP is not necessarily a copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular IP address. In other words, according to the declaration, there is no reason to assume an ISP subscriber is the same person who may be using BitTorrent to download the alleged copyrighted material. Similar assertions are made in memoranda filed in support of the other motions.
In Civil Action No. 12-2084, John Doe #6 filed a sworn declaration subject to the penalties against perjury in support of his motion. In that declaration, John Doe #6 acknowledges that he is the subscriber with the IP address identified in Exhibit A to the Complaint. Significantly, however, he specifically refutes and denies the allegations in the Complaint and/or Plaintiff's Motion for Leave to Serve Third-Party Subpoenas. His declaration provides in pertinent part:
3. For purposes of this Declaration, I remain anonymous and will not disclose my name or location.
4. I did not download any pornography.
5. I have never used Bittorent.
6. I operate a Linksys E4200 router at my home; this devise is capable of operating two wireless networks simultaneously, and can divide the internet service at my home to ...