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. If you would like a free consultation such callus at 312-201-8310 or use our contact form. Detailed information follows about motions to quash a subpoena.
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 2017, Antonelli Law is again encouraged that filing motions to quash the subpoena in BitTorrent movie download cases just may be worthwhile.
Why? A new 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.
These arguments are not new.
However, 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.
We recently filed a motion to quash the subpoena in a Malibu Media LLC case. Days before the court hearing on the motion Malibu Media LLC agreed to dismiss the lawsuit against our client. Was it due to the argument we made above? Or was it the additional argument we made based on jurisdiction that our client was in Indiana and the lawsuit was filed in the Northern District of Illinois? Or something else? We will probably never know.
Based on the above, as of the time of writing this update in 2017 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 accountholder, 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).
Here is the problem: In a multiple defendant case (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 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 a 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 in 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 if someone has received an ISP letter notifying them a subpoena has been issued requesting their identity and they do not wish to settle and instead wish 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 $500 to more than $1,500) 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, 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?
- 2017: Antonelli Law files a motion to quash subpoena. Days before the court hearing on the motion Malibu Media LLC agreed to dismiss the lawsuit against our client. See above for details.
- 2016: Antonelli Law and local counsel win order in Malibu Media LLC case in Northern District of California case staying the subpoena, resulting in settlement favorable to our client.Click here for the Order.
- Antonelli Law and local counsel win order quashing Malibu Media 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
Can I Just Do Nothing and Wait?
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 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 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.
For more information on receiving a letter from your ISP about copyright infringement and a subpoena, click here to contact us for a free consultation nationwide, and also see our FAQ: