Motions to Quash

Should I File a Motion to Quash Subpoena?

Filing a motion to quash is an excellent legal strategy in certain limited circumstances. However, in nearly all cases of BitTorrent copyright infringement claims in the past, filing a motion to quash the subpoena (to stop your identity from being released by your ISP) will actually work against you.

The following is not intended to be legal advice. Deciding whether to file a motion to quash a subpoena or not is a gamble either way. Seek competent legal counsel for your specific situation, or contact us for a consultation.

I'm being sued in Florida state court by Strike 3 Holdings. Can I use a motion to quash?

Strike 3 Holdings uses Florida’s “pure bill of discovery” to file cases and obtain a defendant’s personal information. Many have argued that this is a misuse of the bill and have in turn filed motions to quash the case.

While some defendants find success with this option, it isn’t always a permanent solution to the lawsuit. In fact, Strike 3 Holdings may refile your case in federal court putting you back at square one and leaving you with yet another lawsuit to deal with. To some extent, this will depend on what state you live in. One of our attorneys can explain to you why.

In these Strike 3 lawsuits you have three options:

  • Settle anonymously
  • File a motion to quash
  • Fight your case in court

While filing a motion to quash may be an appealing option for defendants in Florida state cases, it might not make your lawsuit disappear completely.

In some cases, Strike 3 Holdings can refile your case in federal court opening up an entirely new lawsuit and leaving you responsible for further attorney fees, court fees, and potentially settlement fees. Some defendants have used a strategy of filing a motion to quash in Florida, knowing their case may be refiled in federal court. Part of this strategy is to force Strike 3 to ask a federal judge to file a case and subpoena your information, in which case the judge may deny their request.  This also prolongs Strike 3’s wait to get ahold of your name and other information. It is highly important to note that this strategy can benefit certain defendants but may not be the best option for you.

Make sure you’re aware of all the possible outcomes of filing a motion to quash in Florida and have gone through possible scenarios with an attorney before you choose this option.

Learn more about Strike 3 Holdings here.

For more general information about filing a motion to quash, keep reading.

How Might Filing a Motion to Quash Subpoena Help Me?

If a motion to quash the subpoena persuades the judge that the movie company’s lawsuit Complaint is so deficient that it cannot be repaired, because of either jurisdictional or technical reasons, then filing a motion to quash is probably worthwhile.

How can we know in advance if it is worthwhile? No lawyer can ever predict the future, but certain issues have a higher likelihood of success than others.

In 2020, Antonelli Law continues to be encouraged that in some cases filing motions to quash the subpoena in BitTorrent movie download cases may be worthwhile.

Why? For one reason, a law journal article by Loyola Law Professor Matthew Sag has been published explaining why in his opinion many (if not all) of BitTorrent copyright infringement cases don’t really state enough evidence, at least in the lawsuit’s Complaint. Law Professor Matthew Sag’s article is called Defense Against the Dark Arts of Copyright Trolling.

Basically, our argument goes like this:

The lawsuit’s complaint alleging copyright infringement really only alleges that a few “bits” of data were directly observed transmitted with the IP address in question. That’s not enough to make out a copyright infringement claim. Therefore, if the court should throw out the lawsuit’s complaint based on this deficiency (through something called a 12(b)(6) motion) then it should quash the subpoena.

In addition, if you previously were the subject of a Strike 3 Holdings lawsuit in Florida’s Miami-Dade County state court, the fact this state court arguably has zero jurisdiction over a federal copyright infringement claim may give the federal judge another reason to grant the motion to quash motion and dismiss the lawsuit targeting you.

These arguments are not new.

We believe that when a law professor says the same things rather than “just a lawyer” arguing on behalf of a client, a judge (and his or her judicial law clerks) just might take the argument more seriously.

Based on the above, as of the time of writing this update in 2020, we are again willing to file motions to quash subpoenas again – with the hope that the judge will grant it and dispose of the case permanently against the client.

However, even if you are interested in pursuing this route please read below to see why filing a motion to quash the subpoena might not end the case permanently against you, and might even work against you.  And of course, feel free to speak with an Antonelli Law attorney for free to evaluate whether filing a motion to quash the subpoena makes sense for you.

How Would Filing a Motion to Quash Subpoena Work Against Me?

When you are being targeted by your IP address in a BitTorrent copyright infringement lawsuit, the plaintiff that filed the lawsuit does not know who you are. All they have is an IP address. (An IP address does not identify the guilty party, but that is beyond the scope of this page). In order to find out the identity of the ISP account holder, the plaintiff must file a special, early request with the court soon after the lawsuit complaint is filed pursuant to Federal Rule of Civil Procedure 26 (d)(1).

In some cases, such as where the movie company files a lawsuit against many defendants at the same time (e.g., Does 1-25), even if you win a motion to quash the subpoena, the plaintiff will probably have the right to file lawsuits individually against each and every one of the defendants, including you.

Filing a motion to quash the subpoena is often based on one or more of the following factors:

  1. The court in which the lawsuit was filed is not in your jurisdiction
  2. The plaintiff has joined too many defendants (e.g. Does 1-25) and the court has been deprived of a great deal of filing fees instead of filing individual suits and the case docket will become unmanageable. Technically this is an additional motion to “sever” the defendants from each other.
  3. The plaintiff has engaged in some kind of dirty business or technical chicanery, such as unethical practices in prior cases; the complaint fails to state a cause of action and does not include necessary facts, or the BitTorrent “swarm” as alleged in the complaint does not properly connect the numerous defendants together.

Oftentimes, after the court skirmish over the motion to quash is decided by the court, if the defendant “wins” the motion to quash and the court orders the lawsuit “severed” the court will order the ISP subpoenas quashed for the remaining defendants (e.g. Does 1-99).

So, what happens next?

What happens next is the plaintiff immediately files individual lawsuits against the defendants that filed the motions to quash in the first place.

 Now, the defendants that “won” the motion to quash the subpoena in the original lawsuit against multiple defendants (eg. against 100 John Doe defendants) are in a much weaker position because the reasons the court granted the original motion to quash are now absent in the second lawsuit against the individual defendant. It is now almost certain that any new, second motion to quash will be rejected by the court and the plaintiff will finally find out your identity and serve you with a summons and complaint.

So, to summarize, the people that filed a motion to quash the subpoena in the original multiple defendant lawsuit have:

  1. Paid lawyer fees for a motion to quash that did not work in removing the legal threat against them
  2. Made themselves targets of a new lawsuit which names them individually
  3. May have a higher settlement price to deal with the second lawsuit and may have paid much larger legal fees
  4. Have had to deal with the threat of a federal lawsuit for many months

What Does Antonelli Law Advise to Do if I Do Not Want to Settle?

Every case is unique and each individual must discuss their specific facts and tolerance for risk with an attorney. In addition, there may be material changes in the law, plaintiffs’ behavior, or the courts that make the thoughts expressed on this page moot. This website is not intended to give legal advice and does not do so. However, generally speaking, our thinking has been that in those cases where someone has received an ISP letter notifying them a subpoena has been issued requesting their identity – and the movie company has joined many defendants (eg. John Does 1-25), and that person does not want to proactively try to settle the case and instead wishes to take their chances with being named and served with a lawsuit, do not file a motion to quash. If you want to take the risk, save the money you would have spent on a motion to quash (lawyers often charge from $2,000 to more than $3,000) and instead use it to settle the case if: a) you are served a summons and complaint, or b) you are actually targeted in an individual lawsuit against you. And, if you are never served with the complaint, you will have spent nothing – not even attorneys fees.

In order for the gamble of not settling to work the plaintiff must not follow through with serving you with a summons (or waiver of service) and complaint. This might happen if the plaintiff has troubles with the court or if after going after a number of defendants (say for example the first 30 does in a case with defendants numbering 1-100) the plaintiff decides it has better things to do. No one can predict ahead of time if the plaintiff will follow through and serve you with a summons  (or waiver of service) and complaint.

When Should a Motion to Quash Be Filed?

We do file motions to quash and believe they can work in certain limited circumstances. Answering the simple question “Is it worth it?” for you is a little complicated and best discussed in a free initial consultation with our firm. Here are some broad guidelines to discuss with an attorney:

First, if you live in a jurisdiction different than the one the lawsuit was filed in and the jurisdiction you live in is hostile to copyright trolls and/or there are no current attorneys representing the plaintiff in your jurisdiction, a motion to quash based on lack of jurisdiction is probably a good idea.

Second, a motion to quash can be used strategically, such as to increase the length of settlement negotiations while you may be totally anonymous to the movie company. Of course, if you do win the motion to quash, that can be a big plus as well.

Finally, motions to quash can do a number of important things. They can inform the court of defects it was not previously aware of in the plaintiff’s complaint or background. As stated above, a motion to quash can inform the court that the plaintiff has engaged in some kind of dirty business or technical chicanery, such as unethical practices in prior cases. Also, you may catch a lucky break if the plaintiff’s case crumbles at this stage.

Antonelli Law will advise you, take the time to explain some of the complicating factors at work, and let YOU make the call according to your values, tolerance for risk and ability to pay. Sound like good lawyerly advice? We believe so.

We like a good fight that makes sense. After all, we’ve been litigators from the very start of our careers and have the “fire in the belly” to take it all the way. Call attorney Jeffrey Antonelli for a free initial consultation at (312) 201-8310 or email him at Jeffrey@Antonelli-Law.com.

Has Antonelli Law Been Successful with Motions to Quash? 

Yes.

  • Antonelli Law filed a motion to quash the ISP subpoena in federal court. Days before the court hearing on the motion, the plaintiff movie company “called Malibu Media LLC” agreed to dismiss the lawsuit against our client. See above for details.
  • In another matter, Antonelli Law and its local counsel won an order in another Malibu Media LLC case in the Northern District of California case before the well-regarded Judge Alsup staying the subpoena, resulting in a settlement very favorable to our client. Click here for the Order.
  • Antonelli Law and local counsel won a court Order quashing a Malibu Media LLC subpoena and granting all does but Doe 1 to be severed and dismissed as a result of our reply in support of motion to quash and motion to quash in New Jersey.

Disclaimer: Past successes are not a guarantee of future results, and your individual case must be analyzed in terms of the law and other factors. Call attorney Jeffrey Antonelli for a free initial consultation at (312) 201-8310 or email him at Jeffrey@Antonelli-Law.com.

Can I Just Do Nothing and Wait?

Yes – with varying consequences. For example, in cases involving Strike 3 Holdings LLC in states including California, New York, New Jersey, and several others, you can expect that it will be likely that the movie company will file a lawsuit in federal court and serve you with a Summons. Never ignore a Summons. In some other movie company cases, when you do nothing and wait the consequence might only be for the movie company lawyer to send you one or two threatening settlement demand letters. Antonelli Law has dealt with over 50 different movie company copyright infringement lawsuit campaigns over nearly 10 years. We can tell you which of these consequences are likely in your particular circumstances.

At times this phase of the lawsuit can be described as a game of “chicken”: you either do not spend a dime because the case goes away (or they don’t get to sue you for some reason), or if they do sue you it may cost you more for defending it and to settle the case or possibly having an expensive judgment entered against you. For some people. Such as those with sensitive jobs or those with security clearances, merely being served with a Summons may trigger difficult employment complications that may be best to avoid if possible.

You should reflect on how you feel about these possible outcomes. Nobody is in your shoes but you. No one can predict ahead of time if the plaintiff will follow through and serve you with a summons  (or waiver of service) and complaint.

ISP Subpoena & Copyright Defense, BitTorrent lawsuits, Retain Antonelli Law

Call attorney Jeffrey Antonelli for a free initial consultation at (312) 201-8310 or email him at Jeffrey@Antonelli-Law.com. This is a swiftly changing area of law and we continually follow the latest developments.  Our last complex trial involved computer firewalls, sophisticated commercial networks, and a Microsoft certified expert.

Many people are receiving notices from their ISP (Internet Service Provider) informing them a subpoena was received demanding their name and address. If you do nothing, the ISP will release your name and address to the plaintiff’s attorneys on the date indicated in the notice. People are also receiving Summons in the mail requesting a waiver of service of process. Call us for a free initial consultation if you receive either of these.

We offer a reasonable Flat Fee for helping you settle and remain anonymous in many cases, and reasonable fees for motions to quash and for defending you if you are named as a defendant in a copyright infringement lawsuit. We gladly accept referrals from other attorneys and accept clients for all states involving a federal copyright infringement lawsuit, including but not limited to Illinois, Wisconsin, Michigan, Ohio, Maryland, Washington DC, New Jersey, New York, Florida, Colorado, and other states’ federal courts on pro hac vice application around the country.

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