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Can Plaintiffs Pursue eDiscovery and Joinder of Anonymous Defendants for Unlawful Downloads?

Posted on July 9th, 2014

Discovery and joinder issues can be complex at times, and nowhere is that truer than in the age of eDiscovery, internet service providers (ISPs), and internet protocol addresses (IP addresses). The court had to navigate such complexities recently in AF Holdings v. Does, et al., (D.C. Cir., May 27, 2014), a case involving copyright “trolling.”

In that case, AF Holdings filed suit, naming more than 1,000 anonymous “Does” as defendants, and subpoenaed their ISPs for their identities. The ISPs moved to quash arguing that the subpoenas subjected them to “undue burden.”  The ISPs also relied on FRCP 45(d)(3)(A) and argued that the administrative expense was an undue burden because AF Holdings failed to establish that the Washington, D.C., courts would have personal jurisdiction over the defendants.

The district court rejected the arguments of the ISPs, citing the prematurity of the personal jurisdiction and joinder issues when the discovery was being sought prior to the plaintiff naming a defendant.

Upon appeal by the ISPs, the D.C. Circuit noted that AF Holdings made no effort to determine which of the IP addresses were from Washington, D.C., residents. The D.C. Circuit recognized the ease with which time and expenses can increase exponentially during discovery, and determined that AF Holdings could not have had a good faith belief of jurisdiction. The court further noted that the names and identities were likely being sought for reasons unrelated to AF Holdings particular lawsuit.

The next issue related to joinder. The “Does” all allegedly used “BitTorrent,” a file sharing system, to download the same movie over five months. However, other courts have found that for joinder to be appropriate, the users must have been a part of the same transaction or a series of transactions, at the same time. These transactions, temporal proximity, and the users making them up comprise the “swarm.” As such, it stands to reason that if users were all a part of the same swarm, then they could be properly joined. That reasoning could not apply to AF Holdings’ arguments, due in part to the fact that the users were collected over a five month period; essentially destroying any notion of temporal proximity. Accordingly, the D.C. Circuit vacated the discovery order.

The case raised both serious and pertinent questions in the age of eDiscovery. File sharing sites that implement torrents are only becoming more accessible, and being up-to-date on such developments has gone from being a luxury to a necessity in our data driven world.

Did You Know: By 2015, the exponential growth of big data will cause the U.S. alone to face a shortage of over 1.5 million data analysts and managers.

ILS – Plaintiff eDiscovery Experts

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