Whether a Motion To Quash an ISP Subpoena will succeed or fail.

Last Updated on February 22, 2026 by Rob Cashman

TL;DR:
A motion to quash an ISP subpoena asks a court to stop an Internet Service Provider from disclosing a subscriber’s identity. In copyright “John Doe” cases, such motions are often unsuccessful because courts find the subscriber lacks standing before being named. However, there are circumstances (e.g., defective subpoenas or protective orders) where filings can be effective. Read on to understand the law, strategy, and your options.

What is an ISP subpoena?

An ISP subpoena is a court order that requires an Internet Service Provider to disclose identifying information for an account associated with a specified IP address. In copyright infringement cases, these subpoenas are often issued early in the case to allow plaintiffs to identify and name defendants.

I wrote about these in depth in an 8-series treatise about defending against copyright infringement lawsuits:

Article 1: Understanding ISP Subpoenas in Copyright Infringement Lawsuits: What It Means for John Doe Defendants 

In that article, I taught how ISP subpoenas work in U.S. copyright infringement lawsuits, along with who is served the subpoena, what information can be compelled under FRCP Rule 45, and why ISP subscribers implicated as being a “John Doe” Defendant typically do not need to respond.

What is a Motion to Quash?

A motion to quash challenges the validity of a subpoena on procedural grounds, such as lack of relevance, undue burden, or improper scope. Federal Rule of Civil Procedure 45 governs motions to quash for subpoenas issued in federal court.

In my recent 8-series treatise about defending against copyright infringement lawsuits, I took an entire article to deep-dive into motions to quash:

Article 2: The Motion to Quash Explained: When and Why You Should File

In that article, I explained the legal standards courts apply to motions to quash ISP subpoenas under Rule 45. I also explained when John Doe defendants lack standing to challenge those subpoenas (and when they have standing), and why such motions usually fail in BitTorrent copyright cases

What are alternatives to filing a Motion to Quash?

There are many alternatives that an accused defendant can file (in case the motion to quash is unavailable to him for the reasons I described in my deep-dive article). Each alternative has a particular place within the timeline of a lawsuit in which it serves its purpose.

If you have not been served a subpoena to respond to, and you are not ‘subject to’ or ‘affected by’ a subpoena that is issued to your ISP in a “John Doe Subscriber assigned IP address” lawsuit, then you might not have standing to file a motion to quash because the subpoena was not sent to you, and you are not ‘subject to’ or ‘affected by’ it (there is legal language here [bolded] which deviates from the plain English meaning of the words. This can cause you confusion if you are not paying attention to them).

If you are unable to file a motion to quash, then below are alternative motions that you could file at various points of the lawsuit:

• Motion for a Protective Order
• Motion to Dismiss
• Motion to Change Venue
• Jurisdictional Objections once Named
• Negotiation Strategies

MOTION FOR A PROTECTIVE ORDER

Under the Federal Rule of Civil Procedure 26(c)(1), a motion for a protective order is a formal request asking the court to impose limits on discovery to protect a party or non-party from annoyance, embarrassment, oppression, or undue burden. In ISP subpoena cases, this motion may seek to delay disclosure, restrict dissemination, or impose confidentiality requirements.

If an accused internet user is aware that the ISP is about to comply with the subpoena (or they have just complied with the subpoena by provided the internet user’s name and address to the plaintiff’s attorney), he can file a motion for a protective order to ask the court to order that if named and served (or if he was already named and served) that he could be permitted to proceed under a pseudonym (or could proceed anonymously).

When a defendant asks the court to protect their name and identifying information from appearing on the public docket, the request is usually called a motion to proceed under a pseudonym, or a motion to proceed anonymously. This motion is often filed along with the motion for a protective order under Rule 26(c), and/or a motion to file documents under seal.

Federal Rule of Civil Procedure 26(c) governs protective orders;
Federal Rule of Civil Procedure 5.2 governs privacy protections and redactions.

In copyright infringement lawsuits accusing a “John Doe subscriber assigned an IP address,” courts often recognize the need (sometimes on their own) to protect the defendant’s identity.

The reasons include:

• because the subject of the lawsuits often relate to the downloading or viewing of pornographic videos, and/or
  
• irreparable reputational harm could come to a named defendant, even if he successfully defends against the claims asserted in the lawsuit and is dismissed from it.

Judges often weigh the stigma of being publicly named in these copyright cases to determine whether it outweighs the public’s interest in disclosure at these early stages of the lawsuit.

Once a defendant prevails on this motion, the judge writes an Order Granting a Motion to Seal or Redact Identifying Information. As a result, the defendant’s identifying information is stricken from the docket (meaning, it is hidden from appearing on the public docket), and documents which refer to the defendant by name are sealed or redacted.

MOTION TO DISMISS

Under the Federal Rule of Civil Procedure 12(b), a motion to dismiss challenges the legal sufficiency of the plaintiff’s complaint. In copyright infringement cases, motions to dismiss may argue failure to state a claim, lack of jurisdiction, improper venue, or other threshold defects.

F.R.C.P Rule 12(b) has multiple subsections which are also relevant:

Rule 12(b)(2) can be used to assert that the court does not have personal jurisdiction over the defendant (e.g., when the defendant lives outside of the jurisdictional confines of the court). For example, if a defendant is sued in Ohio, but he really lives in New York.

Rule 12(b)(3) can be used to assert that the plaintiff filed the lawsuit in the correct state, but the wrong federal district court in that state. For example, a defendant living in Buffalo, NY (where the proper court is the U.S. District Court for the Northern District of New York), but who is sued in the Southern District of New York (Brooklyn) could ask the court under Rule 12(b)(3) to change the venue to the Northern District where he lives. That way, he could better defend a lawsuit against him.

Rule 12(b)(6) can be used to assert that the plaintiff failed to state a claim upon which relief can be granted. For example, in a copyright infringement lawsuit where the defendant allegedly participated in BitTorrent file sharing, a motion to dismiss may contend that the complaint does not plausibly allege ownership, copying, or volitional conduct by the defendant, and instead relies on conclusory allegations tied only to an IP address.

Each of these becomes relevant only after the defendant is named and served, but before he engages himself in litigation by filing an answer with the court. Before this time, the internet user is not yet a party to the action, and he does not have standing to file a Motion to Dismiss.

While a motion to dismiss can end a case early without having to go through discovery. This is the best procedural mechanism for terminating a lawsuit where the complaint was written poorly or the case itself is defective.

JURISDICTIONAL OBJECTIONS (ONCE NAMED)

Personal Jurisdiction and “In Rem” Jurisdiction are the first topics every law student learns in his Introduction to Civil Procedure course. Personal jurisdiction objections argue that the court does not have jurisdiction over him (over his ‘person’), e.g., because he lives outside of the jurisdictional confines of the court. “In rem” jurisdiction is a similar claim, but that the court does not have jurisdiction over his property.

According to the Federal Rules of Civil Procedure 12(b)(2) (lack of personal jurisdiction) and 12(b)(3) (improper venue), Jurisdictional objections refer to challenges raised by a defendant after being formally named and served, asserting that the court lacks personal jurisdiction or that venue is improper. In BitTorrent copyright cases, defendants frequently argue that alleged activity tied to an IP address does not establish sufficient minimum contacts with the forum state.

I have covered the topic of personal jurisdiction extensively in other articles in my TorrentLawyer blog, but the important thing to be aware of is that the proper time and place to assert jurisdiction objections is after a defendant has been named and served.

Defendants (and attorneys) often confuse the issue and assert lack of personal jurisdiction when filing a motion to quash. I myself have done the same thing in my earlier years as an attorney.

NEGOTIATION STRATEGIES

Most defendants would think that under this topic, I am suggesting that they hire an attorney to NEGOTIATE A SETTLEMENT where they would pay the plaintiff in return for the plaintiff agreeing to release that defendant from liability.

This is incorrect. The SETTLEMENT NEGOTIATION topic is the next one down.

There are a number of negotiation strategies an accused internet user can assert to either:

• convince the plaintiff’s attorney to dismiss the lawsuit because the accused internet user lacks guilt, or
  
• to help the plaintiff’s attorney understand that the defendant would be unable to pay a settlement, even if he were named and served as a defendant in the lawsuit.

As far as ‘lack of guilt’ is concerned, the common format for arguing guilt (or non-guilt) is arguing the case in the courtroom within the structural confines of litigation. But, quite often in bittorrent-based copyright infringement cases, an accused internet user did not do the downloading, and is willing to voluntarily share information with the plaintiff’s attorney at the “John Doe” stage of the lawsuit, before he is named and served as a defendant.

According to the Federal Rule of Civil Procedure, 4(a), a plaintiff has 90 days from the date that it filed the lawsuit before he must name and serve a defendant (or, ask the court for an extension of time, or dismiss the lawsuit).

In copyright infringement lawsuits asserting claims against activities of an IP address, during these 90 days, plaintiff’s attorney needs to investigate whether he believes the real person to name and serve as a defendant should be the ISP account subscriber, or another internet user.

Because the plaintiff’s attorney does not know the real identity of the account holder, he asks the court to allow expedited discovery, and for it to permit them to send a subpoena to the ISP to reveal the identity of the ISP account subscriber.

During this time and sometimes weeks or months before the ISP complies with the subpoena the account subscriber is aware of the lawsuit because he received from his ISP a subpoena notification letter. Thus, he is aware that the ISP will be sharing his contact information with the the plaintiff’s attorney at some point, even if he files a motion to quash to attempt to stop the ISP from complying with the subpoena.

Thus, he can get a ‘head start’ in getting released from liability, often before the ISP complies with the subpoena and shares whatever IP address evidence they have against him with the plaintiff’s attorney.

Whether he attempts to get the “John Doe” Defendant entity dismissed from the lawsuit through cooperating with the plaintiff’s attorney and presenting informal (and voluntary) evidence to prove that he was not the internet user who engaged in the unlawful activities, or whether he attempts to get the “John Doe” entity dismissed because he proves that he cannot afford to pay a settlement (even if he were named and served), either way, this benefits him.

If he can prove to the plaintiff’s satisfaction that although he is the ISP account subscriber, that he is not the downloader who infringed the plaintiff’s copyrights, then he could be voluntarily dismissed without being named and served.

If he can prove to the plaintiff’s satisfaction that he cannot afford to pay a settlement — any settlement (even if he is the downloader who infringed the plaintiff’s copyrights), he might avoid getting named and served through this approach.

The reason either of these approaches work is because an internet subscriber’s ‘guilt’ (or the lack thereof), or the his ‘ability to pay’ a settlement (or lack thereof) — both of these affect the plaintiff’s decision whether to name that internet subscriber as a defendant in the lawsuit (and engage in expensive litigation against a defendant who did not do the unlawful activity), or whether to name and serve a defendant [with the intention of coaxing that defendant into paying money to settle the claims against him] — if the plaintiff’s attorney learns that the internet subscriber cannot afford to pay any settlement, then he himself might decide to forego naming and serving the account holder as a defendant and he might voluntarily dismiss the case.

Or, he might decide to name and serve another defendant who is not the account holder, but rather, the actual internet user who used the account holder’s IP address to infringe his client’s copyright rights.

NOTE: I have covered the topic of ISP Subpoenas extensively in Article #1 of an 8-part series of articles on defendant against copyright infringement lawsuits. I have also extensively covered the topic of Motions to Quash in Article #2 of the series, and the topic of IP address evidence in Article #7.

SETTLEMENT NEGOTIATION (emphasis on the word ‘settlement’)

It seems silly to write about the benefits of a settlement negotiation, when I just described how to convince the plaintiff’s attorney to dismiss the lawsuit without paying any settlement. However, not all plaintiff attorneys are willing to engage in evidence-based analysis with internet subscribers that he or she has not yet named as a defendant (and may never name and serve him). Other plaintiff attorneys have instructions from their client to attempt to settle all cases, guilt or not. Thus, the attorney for the plaintiff might refuse or be unwilling to discuss ‘guilt’ or ‘non-guilt’ until the internet user has been named and served as a defendant. That way, he can approach the question of guilt formally — within the structure of the courts and the Federal Rules of Civil Procedure.

Similarly, many attorneys will agree to a settlement, even if the accused internet user cannot afford the ordinary settlement numbers that they are instructed by their client to ask for. So in circumstances such as these (as we often see with settlements in Strike 3 Holdings lawsuits), there is little-to-no circumstance where the plaintiff will not consider the financial and health circumstances of an accused internet user and agree to lower the settlement amount to something that internet user could reasonably pay. Thus, throwing bank accounts at the plaintiff’s attorney with a “we can’t pay” note will often be met with resistance and a rejection of that attempt, and if necessary, the plaintiff’s attorney will still name and serve that internet user to force him into settlement negotiations as to what he can reasonably pay.

Thus, we breach the topic of SETTLEMENT NEGOTIATIONS within the context of a copyright infringement lawsuit.

When all other options have been exhausted (or where accused internet user wants to avoid litigation or having a loved one named and served for his online activities), engaging an attorney to NEGOTIATE A SETTLEMENT is the option to consider.

A SETTLEMENT is a payment paid to a plaintiff in return for a settlement agreement (which contains both a release of liability, and terms outlining the obligations of each party once the accused defendant performs his part of the agreement). In a SETTLEMENT, it is usually the defendant (or the accused internet user who wants to avoid becoming a defendant) who pays the plaintiff money in return for the plaintiff releasing the defendant (or the “John Doe” entity) from the lawsuit and dismissing the case.

DECIDING WHETHER TO SETTLE is almost always an analysis of the risk that a defendant will be named and served, along with a cost-benefit analysis of whether it would be less costly to settle or to proceed with litigation. One must also remember to include in the analysis whether he would be found guilty (liable) of copyright infringement if the plaintiff asked him to give testimony at a deposition.

My opinion has always been that if an accused internet user did not do the downloading (in an IP-address-based copyright infringement lawsuit), then he should not be settling the lawsuit or paying anything to the plaintiff.

Obviously there are many reasons why an accused internet user might decide to settle even if he did not do the downloading, e.g., in cases where he is protecting someone else in his household who did the infringing activities, or in limited circumstances where he has security clearance and being named in a civil lawsuit would cause him to lose that security clearance, etc.

I covered the topic of settlements (extensively), including when to settle and when not to settle, when I wrote an in-depth article about “Strike 3 Holdings Settlements & Settlement Amounts.” While you might be reading this article for another case, that article still extensively outlines when to consider a settlement, and when not to consider a settlement.

When a Motion to Quash WOULD be the proper response to a subpoena seeking to disclose your identity.

If the plaintiff’s attorney sent the subpoena directly to the accused internet subscriber, and the subpoena demanded that the INTERNET SUBSCRIBER reveal his identity to him or her (or, produce documents relevant to whether the internet subscriber engaged in the unlawful activities claimed against him in the lawsuit, then for valid reasons, the internet subscriber as the recipient of the ISP subpoena, and ‘subject to’ the demands in the subpoena could possibly succeed in moving to quash or modify the subpoena.

I discussed this topic at length in Article #2 of the series in defending against copyright infringement lawsuits, namely on the topic of Motions to Quash.

In that article, I mentioned that other copyright holders in the past have used the Digital Millennium Copyright Act (DMCA) to force an ISP to send a notice of infringement directly to once of its subscribers. In that notice, the copyright holder would include a “you must pay us at this website or else we’ll sue you” note that the ISPs passed directly to the account holders. (This was the subject of most of the CEG-TEK ‘scare letter’ articles, the RightsCorp (Digital Rights Corp.) articles, and later, the RIGHTS ENFORCEMENT articles that I wrote about between 2012-2017).

Copyright holders could similarly send subpoenas directly to the accused account holders requesting evidence the same way DMCA ‘scare’ letters were sent to users almost a decade ago. And by doing so, they would change the landscape of the lawsuits to allow internet users to comply with their requests and allow the copyright holders to do their investigations and their ‘due diligence’ to find out who the actual downloader was. That way, they could name and serve the correct defendant (or better, avoid the embarrassment of naming and serving account holders who they could have easily learned through a phone call whether they were the ones who did the downloading or not).

When a Motion to Quash WOULD NOT be the proper response to a subpoena seeking to disclose your identity.

A motion to quash filed by an account holder (when the subpoena was issued to his ISP would) NOT be the proper response to a subpoena issued to the ISP seeking it to disclose the account holder’s identity to the plaintiff.

The reason for this is because the account holder is not the recipient of the subpoena (it was sent to the ISP, not to him, directing the ISP to reveal contact information relating to the account holder who was assigned a particular IP address on a particular date and time). Thus, the subpoena is not asking the account holder to do anything, and thus he is not ‘subject to’ the subpoena (or ‘affected by’ it).

Once again, I discussed this topic at length in Article #2 of the series in defending against copyright infringement lawsuits, namely on the topic of Motions to Quash.

15 Years later, we are still discussing motions to quash.

We began discussing the issue of filing motions to quash in 2010 (when we opened the Cashman Law Firm, PLLC). 15 years later, we are still discussing the same topic.

THE INTERNET SERVICE PROVIDERS ARE TO BLAME FOR THIS PROBLEM

ISP account holders only learn about the copyright infringement lawsuits (which were directed towards the user of an IP address that was assigned to them) through a subpoena notification letter the ISPs send their subscribers when one of them is implicated as a potential defendant in a copyright infringement lawsuit.

I do not know what the source of why ISPs did it this way, or what they continue to phrase their letters this way, but the ISP subpoena notification letters inform the internet subscriber:

1. that they are implicated as a defendant in this lawsuit,
2. that they (the ISP) are under a duty signed by a federal judge to comply with the subpoena and to release their name and address (and other requested information) to the plaintiff’s attorney, and
3. they (the account subscriber) can file a Motion to Quash the subpoena if they wish to stop the ISP from complying with it.

As a result, ISP subscribers think that 1) they are ‘subject to’ the demands of the subpoena (and must comply to it, reply to it, or oppose it in court), 2) they are the accused “John Doe subscriber assigned IP address” as referenced in the lawsuit.

This is why their first response is, “Oh shoot! I need to hire an attorney to file a motion to quash!”

MOTIONS TO QUASH — ‘IN THEORY’ VS. ‘IN PRACTICE’

We have been directing our clients not to file the motions to quash because they are not the recipient of the subpoenas, and that they do not have standing to oppose the subpoenas in court. But hundreds of defendant still file motions to quash even today, and ‘bittorrent defense attorneys’ happily help them file them for a fee.

The confusion, however, is caused by what the internet subscriber thinks are his rights and obligations, versus what the federal judges repeatedly rule in rejecting their motions.

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, the account subscriber believes that it can file an opposition with the court (a motion to quash or modify the subpoena) in order to stop the ISP from handing out their identity. ISPs state that if they do this, they will ‘hold back’ in complying with the subpoena until their motion is resolved either in their favor (or against them).

Motion to Quash – “IN PRACTICE”

But IN PRACTICE, filing a motion to quash has not achieved the result many hoped for.  In practice, as soon as an internet subscriber who is not yet named files a motion to quash, the plaintiff’s attorneys oppose their motions and claim that the ISP subscriber is not yet a named defendant in the lawsuit, and as such, they do not have “standing” to file the quash or opposition.

Judges readily agree with the plaintiffs’ attorneys here, because they correctly state that 1) the subpoena is not sent to the individuals filing the motion to quash, 2) they are not obligation by the subpoena or ‘subject to’ its demands, and 3) they are not a party to the lawsuit (yet) and have no standing.

In 2010-2016, there was a scam going on in mass-bittorrent-based copyright infringement cases.  Of the thousands of defendants, NOBODY was named and served.

I used to refer to the “John Doe subscriber” phase of the lawsuit the “negotiation and settlement phase.” [I put these phases “in quotes” because in truth, what has been happening is that the plaintiff attorneys and the ISPs have performed what I consider a “slight of hand” with the legal system by making the account subscribers believe they are the “John Doe” defendant in the lawsuits by associating IP addresses assigned to them to the title of the defendant (or by listing their IP address in the lawsuit documents when they were suing one of 1-5000 John Does.)]

For the most part, as of writing this article (originally in 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 that based on the Federal Rules of Civil Procedure, they can do this via “early 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, once the plaintiff attorneys obtain the names of the ISP subscribers, they have been harassing them 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.

*2026 UPDATE*: This was a great article about a motion to quash subpoenas, 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 123.456.781.999” (or whatever the accused IP is).

However, ISPs still use the same ISP Subpoena Notification Letters that they used fifteen years ago. 

These ISP Subpoena Notification Letters still suggest that what the accused defendant needs to do is FILE A MOTION TO QUASH. 

The PROBLEM with Motions to Quash in cases based on downloads by an IP address

The problem with this approach suggested by the ISP letters (to file a motion to quash the subpoena), however, is that while (according to the Federal Rules of Civil Procedure, and/or the local rules, statute, or local code of civil procedure) an accused internet user who received a subpoena can:

• visit a law library,
  
• learn about how to nullify improper service of process in civil cases (their case is a civil case, not a criminal case, so criminal defense strategies suggesting a motion to strike / motion to suppress the information [or a demurrer] granted by the lower court’s decision is just not relevant),
  
• investigate whether the motion was untimely, defective, or the delivery service was valid (whether the internet subscriber was properly served the subpoena), or whether there is a defect in the document itself (whether the lower court document (the summons) or the court order stating that the plaintiff’s motion is granted [where they made a pleading or a request to a court asking whether they may file a motion to force an ISP to disclose a subscriber’s personal account information] was valid or invalid], or
  
  -[Now, in 2026:] I apologize for that convoluted, one-sentence paragraph that I wrote 15 years ago. At the time, including ‘keywords’ in articles used to be the way to get articles indexed by search engine spiders. These days, doing this would get this article and the site banned (as it did in 2022).
  
• if served properly, whether the subpoena poses an undue burden upon the recipient of the motion.

ALL OF THESE approaches are possible ways a court may consider in responding to motions, but they do not help an ISP account holder implicated in our cases. 

Yes, according to the ISP subpoena notification letter, a defendant can file a motion asking for the court to nullify its previous decision to allow the subpoena (they even say that such a motion must be filed usually within 30 days, or before the deadline in the ISP letter). 

However, as soon as the account subscriber decides to file a motion to quash to challenge the validity of the subpoena (or whatever waiver or reason he is using as justification to filing the motion), the immediate outcome is that [assuming he is one of the parties in the case and has standing to file the motion (which he is NOT, and which he does NOT, and the opposing counsel will immediately oppose this type of request)], the court will set a hearing date and both parties will need to attend a court hearing to determine whether what the motion to quash asks the court to do is appropriate or not. 

Practically, a COURT HEARING is not an outcome any internet user accused of downloading a copyright holder’s content would ever want — to be face-to-face with the copyright troll who is using the federal court system to reveal their identity and force them into paying a multi-thousand-dollar settlement for movie downloads they might have done.  

[For this reason, I am ignoring for the purpose of this article 1) a motion to dismiss the lawsuit itself (because this throws the accused defendant into asserting a legal status I simply do not believe that he has), and 2) how a motion to quash must be filed (meaning, what language should be used in such a motion) simply because filing such a motion does not work with our copyright cases.]

Once again, the end result with such a “motion to quash” is that the court usually denies the motion because the internet user filing the motion either is not a party to the lawsuit (they are merely implicated as possibly being the person the “John Doe” is a placeholder for, and thus they do not have STANDING to file the motion). Or, if they are a named defendant, [and they live in the state in which they were sued (and the court has personal jurisdiction over them)*] and they somehow successfully argue that they are somehow ‘subject to’ the subpoena (or ‘affected by’ it), using the legal terms as defined in the Federal Rules of Civil Procedure, not their plain English meaning equivalents.

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.]

THE STORY: 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 is still practicing and has my utmost respect] was that he decided to make a few bucks per defendant, and cash in on the thousands that were being sued in each lawsuit. He decided to sell “motion to quash” packages containing online forms to download and use (e.g., $10 per download). These online forms made it easy to file everything with the court, and the attorney would make a few bucks along the way… or else that was the plan.

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

As a result, many accused downloaders downloaded and used this pirated form to file documents with the court. 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 forms.

Why I do not recommend motions to quash.

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.

I simply do not believe (to the best of my understanding) that the accused internet users are subject to the subpoena, or are able to overcome the standing arguments I’ve seen in the courts. There are sometimes interesting arguments (which I always ready with enthusiasm), and I encourage novel interpretations of the law to fix a subpoena system which is clearly outdated and did not anticipate using an ISP to uncover the identity of an account holder.

Even the Cable Act (which later in 2011, we were investigating whether we could sue the ISP for violating the privacy rights of our clients) is outdated, in that it refers to internet providers as “cable operators” when many ISPs are not cable operators according to the plain meaning of the statute and its revisions.

Simply, so far, attorneys and individuals who filed these have simply not been successful. Just two days ago (2010), the plaintiff attorneys in the Voltage Pictures, LLC v. Does 1-5,000 case asked the court to sanction an attorney who created forms which internet users purchased, copied-and-pasted, and filed with the court. [and now you know the background of 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.

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

[2026 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 one of these with the court.]

What is informative for me is that in the plaintiff attorney’s response (Case 1:10-cv-00873-RMU, Document 19, filed 11/22/2010, pages 4-6), they stated that motions to quash, to dismiss, and 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.)

In hindsight, 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 each one 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 and has no standing to file the motion.

“THUS, HE IS NOT A DEFENDANT IN THIS CASE, AND HE HAS NO RIGHT TO FILE ANYTHING YET WITH THE COURT. *IF AND WHEN* we name and serve him, he can object to the subpoena in his motion.”

…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 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 implicated as being a potential defendant in the lawsuit against them and thus anticipates being sued. Each account holder (“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.

*NOTE: Calling an ISP subscriber a “Doe Defendant” is improper because he is not yet a defendant, and the “John Doe” title is merely a legal fiction or a placeholder. The Doe Defendant is not the subscriber until he is named and served as a defendant, and even then, he wouldn’t be a “Doe Defendant” but a “named Defendant.” Nevertheless, courts and ‘common tongue’ refer to accused ISP account holders as “Doe Defendants,” and thus in 2010, so did I.

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 an opposition with the court because he does not yet have “standing,” and that such a filing is not yet applicable until the defendant is actually named in the lawsuit is simply either irresponsible lawyering, or more likely outdated law (where the law has not yet caught up with the technology of the internet).

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.

[2026 UPDATE: We are now 15 years later from the date I wrote this article, 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 the motions to quash as most attorneys file them (asserting a lack of personal jurisdiction) useless because most attorneys claim the plaintiff sued their client in the wrong state). But even if their improper jurisdiction arguments find merit with a court, the “no standing” problem is still there, even today.

Similarly, the ISP subpoena notification letters still cause 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, most people are now educated on the topic (or at least they get educated quickly). Nevertheless, the initial gut reaction when someone is implicated as being a John Doe is STILL to file a motion to quash.

…still, fifteen years later!

FAQ SECTION (RECAP):

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[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].

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