United States District Court, D. Massachusetts
MEMORANDUM OF DECISION ON MOTION FOR LEAVE TO ISSUE
THIRD PARTY SUBPOENAS
L. CABELL, U.S.M.J.
Viken Detection Corporation and one of its principals, Dr.
Peter Rothschild, seek an injunction and damages against a
John Doe defendant for several instances of alleged
unauthorized access of Dr. Rothschild's online Dropbox
accounts. These accounts contained trade secrets belonging to
the Viken Detection Corporation. They bring their complaint
under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C.
§ 1030, 1030(g), et seq., and the Stored
Communications Act (SCA), 18 U.S.C. § 2701, 2707(a).
person or persons responsible for allegedly accessing the
accounts are currently only known to the plaintiff by
reference to their IP address, a unique alphanumerical label
assigned to any device connected to a computer network. The
IP addresses of the person(s) responsible for the alleged
intrusions were recorded by Dropbox when the unknown user(s)
accessed Dr. Rothschild's accounts. Dropbox has provided
these IP addresses to the plaintiffs as well as corresponding
dates and times when the accounts were accessed.
only way the plaintiffs can realistically proceed in this
lawsuit against the John Doe defendant(s) is to learn their
identity by subpoenaing the Internet Service Provider(s)
(ISP) connected to the IP addresses. To this end the
plaintiffs have filed a Motion for Leave to Serve Third
Party Subpoenas Prior to Rule 26(f) Conference. (D. 2).
For the following reasons, the motion will be
the subpoena of third parties prior to the Rule 26(f)
conference is allowed under Fed.R.Civ.P. Rule 26(d)(1), where
good causes exists. See, e.g.,
Disc. Video Ctr., Inc. v.
Does 1-29, 285 F.R.D. 161, 163 (D. Mass. 2012)
(discussing good cause standard for expedited discovery).
Properly executed, a subpoena to an ISP to unmask the
identity of a John Doe defendant can meet that standard.
See e.g., Kimberlite Corp. v. John Does 1-20, No.
C08-2147 TEH, 2008 WL 2264485, at *1 (N.D. Cal. June 2, 2008)
(denying motion to quash ISP subpoenas in CFAA context).
subpoenas to reveal the identity of the individual behind an
IP address is prevalent in litigation surrounding copyright
infringement as a result of illegally downloaded media.
See e.g., Patrick Collins, Inc. v. Does
1-79, 286 F.R.D. 160, 165 (D. Mass. 2012); Digital
Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242
(S.D.N.Y. 2012); Breaking Glass Pictures v. Swarm Sharing
Hash File SHA1:
CIV. 13-10735-PBS, 2013 WL 2407226, at *1 (D. Mass. May 1,
2013). It also occurs in the context of online defamation.
McMann v. Doe, 460 F.Supp.2d 259, 261 (D. Mass.
the potential for misuse of subpoenas to unmask otherwise
anonymous individuals via their ISP, the sessions in this
district have employed, and the plaintiffs invite us to use,
the five-factor test enunciated in Sony Music Entm't
Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004).
See, e.g. London-Sire Records, Inc. v.
Doe 1, 542 F.Supp.2d 153, 164 (D. Mass. 2008) (applying
the Sony Music test).
Music lists the factors a judge should consider when
deciding whether to issue an identity unmasking ISP subpoena
as: (1) a concrete showing of a prima facie claim of
actionable harm; (2) specificity of the discovery request;
(3) the absence of alternative means to obtain the subpoenaed
information; (4) a central need for the subpoenaed
information to advance the claim; and (5) the party's
expectation of privacy. Id.
forth in their complaint and memorandum of law (D. 1, 3), the
plaintiffs have alleged a prima facie case of a violation of
the CFAA and SCA, seek only the identifying information of
the alleged infringer, have no other means of obtaining this
information, cannot proceed without the information, and at
this stage sufficiently demonstrate that the John Doe
defendant would have no expectation of privacy while
committing violations of the CFAA and/or SCA. As such, the
subpoenas shall issue subject to the conditions set out below
and in the accompanying order.
accordance with practice in this and other courts, the
subpoenas must be served alongside a special notice to the
target of the subpoenaed information informing them of a
30-day period in which they may move to quash the subpoena.
See, e.g., Disc. Video Ctr., Inc. v. Does 1-29, 285
F.R.D. 161, 162 (D. Mass. 2012); Kimberlite, 2008 WL
2264485, at *3 citing UMG Recordings, Inc. v. Does
1-4, No. 06-0652 SBA (EMC), 2006 WL 1343597, at *3 (N.D.
Cal. Mar. 6, 2006)(“Given the privacy ... interests
that inhere in the records sought, this Court has the
authority under the Federal Rules to condition the subpoena
on consumer notice and an opportunity to be heard.”).