Why filing a Motion To Quash an ISP Subpoena will fail.

motion-to-quash

A Motion to Quash might not be the proper response to a subpoena seeking to disclose your identity.

ISPs send you a notice saying that unless you file a motion to quash a subpoena, on a certain date they are obligated to hand over your contact information (your identity) to the plaintiff attorney. Their ISP subpoena notification letter suggests that YOU MUST file a motion to quash or object to the court, or else. In practice, filing a motion to quash might just get you in trouble. (Click to Tweet!)

Now, TWELVE YEARS LATER (January, 2022), the ISPs STILL SEND THE SAME ISP NOTIFICATION LETTER. Accused John Doe Defendants still read that letter and think, “Oh shoot! I need to hire an attorney to file a motion to quash!”

The original article started here:

“I have been closely monitoring the procedural side of a number of these copyright violation cases where thousands of internet users have been accused of illegally downloading various movies using the bittorrent protocol.”  

Motion to Quash – “IN THEORY”

Upon receipt of a notice that an ISP has been provided a subpoena forcing it to reveal the identity of a subscriber accused of downloading a copyrighted film, a motion to quash (a.k.a., an “objection to the court”) to stop the ISP from handing out the subscriber’s identity appears to be the suggested next step.  

Motion to Quash – “IN PRACTICE”

But IN PRACTICE, filing a motion to quash has not achieved the result we would like it to.  Plaintiff attorneys are claiming that the accused John Doe Defendant does not have “standing” to file the motion to quash because they are not yet a defendant in the case.

In 2010, there was a scam going on in mass-bittorrent-based copyright infringement cases.  Of the hundreds of defendants, NOBODY was named and served.

A number of these internet users have hired the Cashman Law Firm, PLLC to represent them through the “negotiation and settlement phase” of the lawsuit. [I put this phase in quotes because in truth what has been happening is that the plaintiff attorneys and the underlying media companies have performed what I consider a “slight of hand” with the legal system by naming each of these defendants in the lawsuit by their IP address or by being one of 1-5000 John Does.]

For the most part, as of today (this was November, 2010), the plaintiffs have not named any defendants in these cases. Instead, they have issued subpoenas to the internet service providers (the ISPs) forcing them to hand over their subscribers’ information. The plaintiffs claim this is so they can do “discovery.”

What is actually happening is that outside of the legal system, regardless of whether it is the Hurt Locker lawsuit, the Far Cry lawsuit, or any of the other smaller lawsuits, the plaintiff attorneys have been harassing the accused ISP subscribers and taunting them using scare tactics to persuade them to pay thousands of dollars each to make them go away. In my opinion, this is an abuse of the legal process, and I would like to see an attorney general order this activity stopped. Nevertheless, this is what is happening.

*2022 UPDATE*: This was a great article about motions to quash, but back when I wrote this article in 2010, copyright troll attorneys filed what were known as “mass bittorrent” copyright infringement lawsuits. Back then, it was common to have 5,000 John Doe Defendants clumped together in one lawsuit. TODAY, HOWEVER, copyright infringement cases usually only have ONE DEFENDANT — one “John Doe Subscriber assigned IP address 123.123.123.555” (or whatever the accused IP is).

However, even today (1/23/2022), ISPs still use the same ISP Subpoena Notification Letters that they did ten years earlier (in 2010). These ISP Subpoena Notification Letters still suggest that what the accused defendant needs to do is FILE A MOTION TO QUASH.

This actually happened: In 2010, a defense attorney sold “motion to quash” online forms for a few dollars a copy. Someone pirated the form, everyone used it, and the plaintiff attorney asked the court to sanction the defense attorney.

Because this happened in the context of this case, I kept this horribly terrible-but-funny piece of history in this article (I felt terrible for the attorney this happened to).

[Click here to read about this story in more depth.]

In 2010, a group of us attorneys were trying to figure out how to deal with the mass-bittorrent-copyright-infringement lawsuits, and specifically what to do about the ISP Subpoena Notification Letters where the accused defendants were led to believe that they should file a motion to quash as their next legal step to preserve the anonymity of their identity.

My approach was to realize that the motion to quash was a bad idea.

Another attorney’s approach [bless his heart, even today he has my utmost respect] decided to make a few bucks per defendant. He decided to sell “motion to quash” packages containing online forms to download and use (e.g., $10 per download). These “motion to quash” forms made it easy to file a motion to quash, and the attorney made a few bucks along the way, or else that was the plan.

…I will never forget the uncontrollable laughter an attorney next to me experienced when he realized that this defense attorney’s “motion to quash” package was pirated and UPLOADED TO THE BITTORRENT NETWORK. “What did you expect them to do?” he asked me.

As a result, many accused downloaders used this form to file motions to quash in this case (the one the article was written about). The plaintiff attorneys got mad at all of the extra paperwork this caused [because there were thousands of defendants], and they asked the court to sanction the defense attorney who sold the online “motion to quash” forms.

Why I do not recommend motions to quash.

Returning to the “motion to quash” topic, since then, a number of people have asked me why I do not advise a “march into court and file a motion to quash” approach.

Simply, so far, attorneys and individuals who filed motions to quash have not been successful. Just two days ago (2010), the plaintiff attorneys in the Voltage Pictures, LLC v. Does 1-5,000 case filed a motion asking the court to sanction an attorney who created forms which internet users purchased, copied-and-pasted, and filed with the court. [Now you know the story because I added it in, now 10 years later.]

While I just spent close to an hour e-mailing the attorney against whom sanctions were requested and suggesting ways as to how to properly defend himself against their accusations, the fact that the law firm maliciously went after this defense attorney trying to help people out of this situation is notable, but it is not useful to you, the reader.

motion-to-quash-isp-subpoena
blende12 / Pixabay

“NO STANDING” ARGUMENT: Filing a motion to quash is inapplicable to a defendant before he is named and served.

[2022 UPDATE: Unfortunately, it was this same case which gave birth to the “no standing to file a motion to quash” response that became a common plaintiff attorney response when someone files a motion to quash.]

What is telling is that in their motion (Case 1:10-cv-00873-RMU, Document 19, filed 11/22/2010, pages 4-6), the plaintiffs stated that a motion to quash, motions to dismiss, and motions for protective orders ARE COMPLETELY INAPPLICABLE BECAUSE DEFENDANTS ARE NOT YET NAMED OR SUED AS DEFENDANTS IN THE LAWSUIT. The plaintiffs continue (on page 5) and say, “The subpoenas are issued to the ISPs, and the Doe Defendants do not have to do anything in responding to the subpoenas [because they have not yet been named in the lawsuit].” (Emphasis added.)

2022 UPDATE: This document ended up causing the standard “no standing” response to all motions to quash filed after 2010. After this lawsuit, plaintiff attorneys responded to motions to quash by stating, “So-and-so just filed a motion to quash. However, I do not know who so-and-so is. I sued “John Does 1-5000”; so-and-so is not a defendant in this lawsuit.

“THUS, HE IS NOT A DEFENDANT IN THIS CASE, AND THUS HE HAS NO RIGHT TO FILE A MOTION TO QUASH YET. *IF AND WHEN* we name and serve him, if he does not live in the state, he can object to the personal jurisdiction of the court in his answer.”

…Thus the “no standing” objection to motions to quash were born, and thus died the filing a motion to quash.

My Opinion: There should be some motion or filing available to accused defendants, but a motion to quash has not yet been an effective answer.

I must point out that I disagree with the plaintiffs here because in my understanding, being named in a lawsuit (regardless of whether the defendant is named as an IP address or as a Doe Defendant) causes undue harm to the defendant even prior to being named as a defendant.

The reason I say this is that each John Doe Defendant is sent a threatening letter from their ISPs accusing them of illegal activity. Each Doe is “put on notice” that he or she has been named in a lawsuit and thus anticipates being sued. Each Doe Defendant is advised to retain an attorney and is told that he or she can be criminally and/or civilly liable for violation of the federal copyright laws.

Each Doe Defendant is then ACTIVELY solicited and threatened by the attorney plaintiffs to “pay up or face a real lawsuit” where a judgment can cost a family their home, all their savings, their freedom, and possibly force them into bankruptcy. In my opinion, to say that an unnamed John Doe Defendant at this point has no right to file such a motion because he does not yet have “standing,” and that such a motion is not yet applicable until the defendant is actually named in the lawsuit is simply irresponsible lawyering.

But so far, I have not seen the motions to quash be an effective tool against the media companies looking to enforce their copyrights. I have not seen the judges letting defendants off the hook for simply sending in letters and/or form responses asserting what in my opinion are proper jurisdictional arguments.

[2022 UPDATE: We are now 12 years later from the date I wrote this letter, and motions to quash are still the same, plagued with the same issues (and yielding the same response from the plaintiff attorneys) and the same outcomes. Cases have evolved and copyright trolls started suing defendants in the state in which they lived (making motions to quash useless because they claim the plaintiff sued them in the wrong state), but the “no standing” problem is still there, even today.

Similarly, the ISP subpoena notification letters still make the ISP subscribers think that they need to immediately file a motion to quash to preserve their anonymity. I am happy to share that after all of the articles I wrote over the years on motions to quash, now people are educated on the topic. Nevertheless, the initial gut reaction when someone is sued as a John Doe is STILL to file a motion to quash.

…still, twelve years later! [Please click here to Tweet!]


[CONTACT AN ATTORNEY: If you have a question for an attorney about an ISP Subpoena Notification Letter you received, you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your notice, or you can call/SMS us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

    NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

    Discussing a motion to quash a subpoena filed in form by a “John Doe.”

    We Focus on Subpoena Notices.

    Our Cashman Law Firm, PLLC firm is focusing our efforts in representing clients who have received subpoenas in the following movie-based bittorrent lawsuits.  In each case, deciding whether to file a motion to quash a subpoena issued to the ISP (and forcing it to reveal the identity of the subscriber who is sued) is one of the most important decisions that client will make in the course of his lawsuit.

    “John Doe” cases and what we know about them:

    RIGHTS ENFORCEMENT (‘EVIL TWIN’ OF CEG-TEK) DMCA SETTLEMENT LETTERS

    MALIBU MEDIA, LLC (“X-ART.COM”) LAWSUIT SUBPOENA CASES

    UN4 PRODUCTIONS, INC. (“BOYKA:UNLIMITED”) LAWSUIT SUBPOENA CASES

    ME2 PRODUCTIONS, INC. (“MECHANIC:RESURRECTION”) LAWSUIT SUBPOENA CASES

    *NEW* HEADHUNTER, LLC (“A FAMILY MAN”) LAWSUIT SUBPOENA CASES

    I.T. PRODUCTIONS, LLC (“I.T.” MOVIE) LAWSUIT SUBPOENA CASES

    COOK PRODUCTIONS, LLC (“MR. CHURCH” MOVIE) LAWSUIT SUBPOENA CASES

    THE GREAT MPAA / RIAA SCHEME TO BREAK COPYRIGHT LAW (AN OPINION PIECE)

    Why discussing a motion to quash a subpoena is relevant in a bittorrent lawsuit.

    In each of these lawsuit subpoena cases, a movie company or copyright holder filed a copyright infringement lawsuit against ISP account holders.  Judges allowed the copyright holders to send subpoenas to the account holders, and the ISPs sent out lawsuit subpoena notices to inform the account holder that they have been implicated as a John Doe Defendant in this case, and that the subpoena obligates them to hand over your contact information to the plaintiff attorney unless you file a motion to quash the subpoena.

    Whether and how to file a motion to quash a subpoena sent to your ISP is possibly the biggest decision you will make in your “John Doe” lawsuit.  There are no motion to quash forms to fill out, and a motion to quash a subpoena should be filed by an attorney.

    Benefits in filing a motion to quash a subpoena.

    The benefits of filing a motion to quash a lawsuit subpoena are numerous.  If successful, a motion to quash can possibly stop your ISP from disclosing your identity to the copyright troll who is suing you.  Without your identity information, those who have sent the lawsuit subpoenas won’t know your identity, and thus they cannot name and serve you (a.k.a. ‘sue you’) as a defendant in the case.

    In good form, an attorney can file a motion to quash a lawsuit subpoena when the accused defendant lives outside of the state in which the lawsuit was filed.  There are also other reasons in good form to file a motion to quash a lawsuit subpoena, namely, where the lawsuit subpoena itself is defective, and for other reasons I will be discussing in detail in the coming weeks.

    Risks in filing a motion to quash a subpoena.

    There are downsides or risks in filing a motion to quash a lawsuit subpoena, namely, if you live in the state in which you were sued, convincing a judge to disallow the release of your information is an uphill battle.  Some judges do not allow a John Doe Defendant to file a motion to quash a subpoena without the defendant listing his real name on the form.  This reveals the identity of the John Doe Defendants, and makes the attempt to stop the ISP from revealing your identity to the plaintiff attorney in vain, because the plaintiff attorneys see the motions to quash because the court filings are public information.

    Objections your opposing counsel will bring to oppose your motion to quash.

    After filing a motion to quash the subpoena, the copyright holder’s will object to your motion to quash.  They will argue that your “John Doe” entity is merely a placeholder, and that you are not a true defendant until the plaintiff attorney decides to name and serve you as a defendant (meaning, someone comes to your home, knocks on your door, and serves you with a copy of the complaint).  Thus, he will claim that you do not have [what is called in the legal world] ‘standing’ to file the motion to quash.

    Motions to quash a subpoena will likely become a part of our defense of our clients.  Current side strategies to filing a motion to quash.

    Without abandoning this topic (our Cashman Law Firm, PLLC elves are working on a strategy to allow defendants to file a motion to quash a lawsuit subpoena regardless of in what state or federal court that lawsuit is filed), there is an alternative to filing a motion to quash a lawsuit subpoena, and that is to file [what is called in the legal world] a ‘protective order’ in order to keep the identity of the John Doe Defendant anonymous.

    Judges will often approve such a request to keep your information private and anonymous, and thus as a side strategy to filing a motion to quash the subpoena, your attorney (us, or anyone else) can file a motion for a protective order so that you won’t need to worry that the plaintiff attorney will expose your identity to the public by naming and serving you without giving you the chance to first mount a proper defense.

    If you have any questions about what we are doing, please feel free to contact us at 713-364-3476, or to book an appointment to speak to us about your lawsuit, click the button below:

    Book a Free Consultation Now To Discuss Whether To File a Motion to Quash a Subpoena in your lawsuit.

    TorrentLawyer Blog Recent Articles

    On our TorrentLawyer blog, the focus is to provide quality educational content to internet users who are accused of downloading copyrighted content in a “John Doe” copyright infringement bittorrent lawsuit.  Below are recent articles organized by topic.

    MOVIE SUBPOENA LAWSUIT ARTICLES

    Why bittorrent-based copyright infringement lawsuits are questionable.
    – Unscrupulous attorneys (‘copyright trolls’) accuse defendants without researching whether there is any valid evidence, and their lawsuits are circumstantial.

    MALIBU MEDIA (“X-ART.COM” ADULT FILM SITERIP) SUBPOENA LAWSUITS

    Turnkey ‘Settlement Factory’ Defense Attorneys and Malibu Media Settlement Amounts,” written on 3/28/2017.

    Which Lipscomb attorneys stayed with Malibu Media, LLC?” written on 3/13/2017.
    -Malibu Media “old guard” attorneys Patrick Cerillo and Jon Hoppe enjoy preserved territory, even if they file fewer cases than newer attorney Jaqueline James.

    Confirmed: Malibu Media invests $400 filing fees @$20K/month,” written on 3/13/2017.
    – Continuing our 2016 analysis, Malibu Media LLC is still spending on average $20,000 in $400 filing fees plus the cost of subpoenas for each John Doe lawsuit.

    2017 Malibu Media – Which Attorneys Filed Cases and Where?” written on 3/13/2017.
    – Malibu Media, LLC is splitting new lawsuits between attorneys Jacqueline James, Patrick Cerillo, and Andrew Kumar to sue John Doe Defendants in NY/NJ/CT/TX.

    MECHANIC RESURRECTION MOVIE SUBPOENA LAWSUITS (ME2 PRODUCTIONS)

    ME2 subpoenas due today.  ISPs will comply (and other FAQs.)
    – Today is the due date for a number of subpoenas sent to the Comcast ISP for the ME2 Productions, Inc. copyright lawsuits filed across the US

    Did ME2 Attorney Fischman disclose real Interested Parties?
    – We question whether Gary Fischman properly disclosed the real interested parties in the ME2 Productions John Doe lawsuits, or whether he listed a shell company.

    Analyzing the mindset of the ME2 Productions TX attorneys.
    – Digging into the mindset of a copyright troll attorney in the context of the Mechanic:Resurrection movie lawsuit.

    ME2 Productions Bittorrent Lawsuits Have Come To Houston, TX
    – ME2 Productions via Attorney Gary Fischman sued John Doe Defendants for Copyright Infringement in Texas.

    A FAMILY MAN (2016) MOVIE SUBPOENA LAWSUITS (HEADHUNTER, LLC)

    North Carolina Headhunter Subpoenas are Due on 8/5
    – AT&T U-verse subscribers in NC are all facing an 8/5 deadline to quash ISP subpoenas sent by HEADHUNTER, LLC.

    Everything You Need to Know In One Place About Your HEADHUNTER, LLC (“A Family Man”) Movie Lawsuit (FAQ)

    I.T. MOVIE SUBPOENA LAWSUITS (I.T. PRODUCTIONS)

    TX Judge Hughes Disallows I.T. Productions From ‘Suing Does’
    – Texas Federal Judge Hughes prevents I.T. Productions attorney Gary Fischman to refer to ISP subscriber recipients as “John Does”, but rather as “IP Subscriber.”

    I.T. Productions, LLC should really be called “I, Troll.”
    – I.T. Productions has sent subpoenas to Comcast and other ISPs to disclose the identities of the John Doe Defendants accused of downloading the I.T. movie.

    MR. CHURCH MOVIE SUBPOENA LAWSUITS (COOK PRODUCTIONS)

    Cook Productions ‘dipping toes’ into federal court lawsuits.
    – Cook Productions sending subpoenas to ISPs and suing John Doe Defendants for copyright infringement for the download of their “Mr. Church” movie.

    SOFTWARE PIRACY LAWSUITS

    SIEMENS PLM SOFTWARE PIRACY LAWSUITS IN TEXAS

    Siemens Surprises John Does With $50K+ Settlement Requests
    – Siemens appears to be soliciting business-level licenses from John Doe Defendants which can cost $30,000+ for each ‘seat’ or license.

    How an attorney should handle a Siemens PLM Software Lawsuit
    – Steps an attorney representing a Siemens PLM lawsuit would take to represent a client in this software piracy case.

    Siemens PLM converting NX software pirates into customers.
    – Siemens PLM software piracy lawsuits are focusing on engineers who used NX Mach 3 pirated software versions and are converting them into paying license holders.

    Software Develops Now Tracking the USE of the Software
    – Software Developers are now sending early discovery subpoena letters through the ISPs alleging pirated software is being USED AND TRACKED to prove infringement.

    ENCRYPTION AND TECHNOLOGY

    Why I would not put Kodi on an Amazon Fire TV Stick
    – Using Kodi on an Amazon Fire Stick might not get you sued for copyright infringement, but it puts you at risk by exposing your IP address and your activities.

    When is it too late to hire a lawyer in a John Doe lawsuit?
    – The best time to hire an attorney ris immediately when the ISP sends the subpoena letter indicating you have been implicated as a John Doe in the lawsuit

    DMCA SETTLEMENT LETTERS

    RIGHTS ENFORCEMENT (rightsenforcement.com)

    WHAT I KNOW ABOUT RIGHTS ENFORCEMENT
    – A complete write-up of everything I have compiled on the RIGHTS ENFORCEMENT copyright enforcement company, and their likely DMCA and litigation tactics.

    RIGHTS ENFORCEMENT is a Reverse-Engineered CEG-TEK Evil Twin
    – Clarifying what exactly is RIGHTS ENFORCEMENT, who is Carl Crowell, and how to handle the DMCA copyright infringement notices received from your ISP.

    Porn Sites Sending DMCA Letters Through RIGHTS ENFORCEMENT
    – RIGHTS ENFORCEMENT is sending DMCA settlement demand notices for adult film porn companies such as Reality Kings, Brazzers, and Digital Playground.

    SHOULD I IGNORE A “RIGHTSENFORCEMENT.COM” DMCA NOTICE?
    – If I receive a DMCA settlement demand letter from RIGHTS ENFORCEMENT, should I ignore it?

    WHAT IF MY RIGHTS ENFORCEMENT DMCA NOTICE DUE DATE EXPIRED?
    – What happens after a RIGHTS ENFORCEMENT DMCA settlement demand letter expires, and should you worry about getting sued immediately after a missing a deadline.

    IS IT SAFE TO LOG IN TO RIGHTSENFORCEMENT.COM?
    – Analysis of whether it is safe to log in with your case number and IP address to the RIGHTS ENFORCEMENT website.

    RIGHTS ENFORCEMENT’S KNOWN ‘MOVIE’ CLIENT LIST.
    – RIGHTS ENFORCEMENT was kind enough to give us a preview of which movies they will sue people for in the coming year.

    WHAT IS THE RELATIONSHIP BETWEEN RIGHTS ENFORCEMENT AND YOUR ISP?
    – Revisiting the RELATIONSHIPS BETWEEN AN ISP AND A COPYRIGHT ENFORCEMENT COMPANY, I come to different conclusions with RIGHTS ENFORCEMENT as I did last year.

    RIGHTS ENFORCEMENT DMCA letters like CEG-TEK but with teeth.
    – RIGHTS ENFORCEMENT appears to be CEG-TEK but with a desire to sue ISP subscribers who receive DMCA notices but choose to ignore them.

    RIAA / MPAA ACTIVITIES

    Why I Believe the MPAA/RIAA Schemed to Break Copyright Law
    – Yesterday I wrote an article suggesting the MPAA/RIAA is behind both the movie AND the porn-based lawsuits.  Today I explain how I arrived at that conclusion.

    The Great MPAA/RIAA Scheme to Defraud Copyright Law.
    – How the MPAA/RIAA appear to have made use of pornography-based copyright infringement lawsuits to pave the way for their “John Doe” movie cases.

    Is it ‘coincidence’ early bittorrent cases were porn-based?
    – Discussing the evolution of piracy from 1994-2017, we uncover a conspiratorial plot that early porn cases were planned as a precursor for movie-based lawsuits.

    MISCELLANEOUS

    A Thank You! to bloggers who have made our site possible.
    – Taking a quick moment to thank those who help fight against copyright trolls.

    CONTACT US

    FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your matter, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

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      NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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