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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HARD DRIVE PRODUCTIONS, INC., )

) CASE NO.: 1:12-cv-1532

Plaintiff, )

)

v. ) Judge: Hon. Edmond E. Chang 

) Magistrate Judge: Hon. Susan E. Cox

DOES 1 – 54, )

)

Defendants. )

)

)

PLAINTIFF’S RESPONSE TO MOVANT’S MOTION TO QUASH

An anonymous individual (“Movant”) claiming to be associated with Internet Protocol 

(“IP”) address 96.35.21.42 filed a motion to quash the subpoena issued to Charter 

Communications (“Charter”). (ECF No. 12.) Movant argues that the subpoena should be quashed 

because the Court lacks personal jurisdiction over him (id. ¶¶ 4-7), and it subjects him to an 

undue burden (id. at 8). For the reasons outlined below, Movant’s motion must be denied. 

ARGUMENT

This brief consists of two parts. Part I argues that Movant’s motion should be denied due 

to its fatal procedural defects. Part II argues that Movant’s motion should be denied on the basis 

of its substantive arguments. Part III contains supplemental briefing on the nature of a BitTorrent 

swarm and geolocation technology.

I. MOVANT’S MOTION SHOULD BE DENIED BECAUSE OF ITS FATAL 

PROCEDURAL DEFECTS

Movant’s motion suffers from two procedural defects. First, Movant lacks standing to 

bring the arguments he raises. Second, Movant fails to comply with Federal Rule of Civil 

Procedure 11. 

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A. Movant Lacks Standing to Bring the Arguments he Raises

Movant’s motion to quash a subpoena issued to a nonparty ISPs should be denied

because Movant lacks standing to bring the arguments he raises. When a subpoena is directed to 

a nonparty, any motion to quash or modify the subpoena generally must be brought by that 

nonparty. Vogue Instrument Corp v. LEM Instruments Corp., 41 F.R.D. 346, 348 (S.D.N.Y. 

1967) (explaining that persons “who were neither the persons to whom subpoenas were directed 

nor in possession or control of the documents sought by subpoena duces tecum lacked standing 

to move to quash the subpoenas.”); see also 9 James Wm. Moore, et al., Moore’s Federal 

Practice § 45.50[3]; 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure

§ 2459 (2d ed. 1994). All subpoenas issued pursuant to the Court’s March 7 Order (ECF No. 9) 

were issued to nonparty ISPs. The ISP that provides Internet access to Movant is the entity to 

which the specific subpoena at issue was directed, and the ISP is also the entity in possession and 

control of the information sought in the subpoena—not Movant. A potential party to the action 

does not have standing to assert any rights of the nonparty as a basis for a motion to quash or 

modify a subpoena. Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979); Shepherd v. Castle,

20 F.R.D. 184, 188 (W.D. Mo. 1957)); Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (D. Pa. 

2001) (citing Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997)).

The application of this well-established rule does not leave ISP subscribers without 

recourse, as an exception to this general rule is applicable under specific circumstances. “The 

general rule is that a party has no standing to quash a subpoena served upon a third party, except 

as to claims of privilege relating to the documents being sought.” Windsor v. Martindale, 175 

F.R.D. 665, 668 (D. Colo. 1997); see also Fed. R. Civ. P. 45(c)(3)(A)(iii) (a motion to quash 

may be brought if the subpoena “requires disclosure of privileged or other protected matter, if no 

exception or waiver applies.”). Movant alludes to a “personal right and privileged [sic] of 

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protection of information” (ECF No. 12 ¶ 1), but does not further elaborate on what information 

specifically is privileged or protected. (See generally id.) This vague statement is insufficient for 

quashing a subpoena. Hard Drive Productions, Inc. v. John Does 1-44, No. 11-2828 (N.D. Ill. 

Aug. 9, 2011), ECF No. 15 at *2 (“[the movant] has made no effort to explain in what manner 

his identity as the user of [his] IP address . . . is privileged information. [The movant] instead 

focuses his arguments on the burden associated with having to appear in court for purposes of 

contesting personal jurisdiction. . . . The court finds this argument to be unpersuasive.”)

Movant’s motion should therefore be denied, as he lacks standing to bring any of his arguments

to quash or modify the subpoena.

B. Movant’s Motion Should be Stricken for its Failure to Comply with Federal 

Rule of Civil Procedure 11

Movant failed to provide any identifying information sufficient to satisfy Federal Rule of 

Civil Procedure 11. Rule 11 provides that “[e]very pleading, written motion, and other paper 

must be signed” and “must state the signer’s address, e-mail address, and telephone number.” 

Fed. R. Civ. P. 11(a). This rule is intended to maintain the integrity of the system of federal 

practice and procedure, deter baseless filings, and streamline the administration and procedure of 

federal courts. Business Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 552 

(1990); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). “[P]arties to a lawsuit must

typically openly identify themselves in their pleadings to ‘protect[] the public’s legitimate 

interest in knowing all of the facts involved, including the identities of the parties.’” United 

States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (citing Doe v. Frank, 951 F.2d 

320, 322 (11th Cir. 1992)); see also Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005). The 

court in IO Group, Inc. v. Does 1–244, No. 10-03647 (N.D. Cal. May 10, 2011) explains that 

“[t]here is no way to determine whether the motion was filed by a real party in interest or a 

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stranger to the litigation. As such, the filing is improper . . . If Possible John Doe wishes to 

appear in this action anonymously or otherwise, he or she must follow the proper procedures for 

doing so.” The same concerns are present here.

Allowing anonymous persons to litigate before a court raises many issues, including the 

risk that persons without any connection to a case whatsoever submit pleadings that affect the 

future course of litigation for actual parties to the case. Courts deny motions on this basis. Hard

Drive Productions, Inc., v. Does 1-21, No. 11-00059 SEB (S.D. Ind. July 27, 2011), ECF No. 22. 

(“[T]he Court cannot permit anonymous persons to litigate before it pro se.”) Pink Lotus 

Entertainment, LLC, v. John Does 1-53, No. 11-22103 (S.D. Fla. Sept. 6, 2011), ECF No. 19 

(Striking a motion to dismiss because the anonymous John Doe failed to comply with Rule 11 of 

the Federal Rules of Civil Procedure). Movant fails to provide a name, complete address, e-mail 

address, telephone number, or even a copy of any legal documents (such as the subpoena) he has 

received in this case. (See generally ECF No. 12.) This Court cannot be sure that Movant has any 

legal status in this case. Movant could be anyone—perhaps someone who simply dislikes

copyright infringement lawsuits. Movant could claim anything he wanted in a Motion and face 

no responsibility for what was asserted. The Court has a responsibility to the parties in a lawsuit 

to protect them from baseless accusations and unnecessary litigation. Hard Drive Productions, 

Inc., No. 11-00059 (“The Court must be informed as to the identity of the parties before it for 

whole host of good reasons, including but not limited to the need to make service of its orders, 

enforce its orders, and ensure that the Court’s resources (and the public tax dollars that fund 

those resources) are not misspent on groundless litigation.”) The Court should strike Movant’s 

motion for failure to comply with this essential rule.

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II. MOVANT’S MOTION SHOULD BE DENIED ON ITS SUBSTANTIVE 

ARGUMENTS

Movant’s substantive arguments do not provide a basis to quash Plaintiff’s subpoena. 

First, Plaintiff is not required to establish personal jurisdiction in its complaint. Second, 

Movant’s personal jurisdiction arguments are premature. Third, geolocation technology places

Movant within the Court’s jurisdiction. Fourth, Movant cannot credibly claim that his ISP’s 

compliance with Plaintiff’s subpoena would unduly burden him. 

A. Plaintiff is not Required to Establish Personal Jurisdiction in its Complaint

Movant argues that personal jurisdiction is established if a relationship exists between a 

party and the state sufficient to established minimum contacts, and “no such relationship has 

been plead by the Plaintiff.” (ECF No. 12 ¶ 5.) Plaintiff is not required to “prove” personal 

jurisdiction at this stage of the litigation. It is well-established that personal jurisdiction does not 

even have to be pled. See, e.g., Hagen v. U-Haul Co. of Tenn., 613 F. Supp. 2d 986, 1001 (W.D. 

Tenn. 2009) (“The burden of establishing the existence of personal jurisdiction lies with the 

party asserting such jurisdiction, i.e. the plaintiff. Although, a plaintiff is only required to meet 

this burden when challenged by a motion under Rule 12(b)(2) ....”); Hansen v. Neumueller 

GmbH, 163 F.R.D. 471, 474-75 (D. Del. 1995) (noting Rule 8 does not require plaintiffs to state 

grounds on which personal jurisdiction is alleged and that the plaintiff’s pleading burden changes 

once the defendant challenges personal jurisdiction). Federal Rule of Civil Procedure 8(a)(2) 

requires only “a short plain statement of the claim showing that the pleader is entitled to relief in 

order to give the defendant fair notice of what the ... claim is and the grounds upon which it 

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A defendant who:

receives a complaint and summons from a court in another 

jurisdiction and believes she is not subject to that court’s 

jurisdiction ... has several alternatives available to her. First, she 

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may ignore the complaint and summons and then, if a default 

judgment is issued against her, may challenge the issuing court’s 

jurisdiction in a collateral proceeding (presumably closer to home 

or other assets) when the plaintiff seeks to enforce the judgment. 

Second, she may voluntarily waive any lack of personal 

jurisdiction and submit to the district court’s jurisdiction. Third, 

she may appear in the distant court for the limited purpose of 

deciding the jurisdictional issue.

Ellis v. Fortune Seas Ltd., 175 F.R.D. 308, 311 (S.D. Ind. 1997). Only if the third scenario 

presents itself would the Court have cause to address personal jurisdiction. Id.

B. Movant’s Challenge to Personal Jurisdiction is Premature

Movant further argues that the Court lacks personal jurisdiction over Movant. (ECF No. 

12 ¶¶ 4-7.) Movant’s challenge to personal jurisdiction is premature at this stage of the litigation, 

because the Court has limited means to evaluate Movant’s specific connections with this forum. 

MCGIP, LLC v. Does 1-14, No. 11-2887 (N.D. Ill. July 26, 2011), ECF No. 19 (“the [movants] 

argue that this Court may lack personal jurisdiction over them . . . . These arguments are 

premature.”); Virgin Records Am., Inc. v. Does 1–35, No. 05-1918, 2006 WL 1028956, at *3 

(D.D.C. Apr. 18, 2006) (“In each case, courts have rejected [the jurisdiction] argument as 

‘premature,’ even where the Doe defendants assert that they live outside the court's jurisdiction 

and have minimal or no contacts with that jurisdiction.”); London-Sire Records, Inc. v. Doe 1, 

542 F. Supp. 2d 153, 180–81 (D. Mass 2008) (finding it “premature to adjudicate personal 

jurisdiction” on the available record). A court cannot properly assess a defendant’s contacts with 

a forum until the defendant has at least been identified. Hard Drive Productions, Inc. v. Does 1-

118, No. 11-1567 (N.D. Cal. Nov. 8, 2011), ECF No. 28 at *3; Sony Music Entm’t, Inc. v. Does 

1–40, 326 F. Supp. 2d 556, 567 (S.D.N.Y. 2004) (holding that “without identifying information 

sought by plaintiffs in the [ISP] subpoena, it would be difficult to assess properly the existence 

of personal jurisdiction over the Doe defendants”).

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The Court currently has limited information to assess whether his jurisdictional defenses 

are valid and to evaluate possible alternate bases to establish jurisdiction. Hard Drive 

Productions, Inc. v. John Does 1-44, No. 11-2828 (N.D. Ill. Aug. 9, 2011), ECF No. 15 at *2 

(“Unless and until [movant] has been officially brought into this case, the question of personal 

jurisdiction remains unripe for resolution by the court.”); Call of the Wild Movie, LLC v. Does 1-

1,062, 770 F.Supp. 2d 332, 346 (D.D.C. 2011) (“Without additional information, the Court has 

no way to evaluate the defendants’ jurisdictional defenses.”); Hard Drive Productions, Inc. v. 

Does 1-118, No. 11-1567 (N.D. Cal. Nov. 8, 2011), ECF No. 28 at *3 (“a court cannot assess 

whether personal jurisdiction exists over a particular defendant until the defendant has been 

identified.”); Hard Drive Productions, Inc. v. Does 1-31, No. 11-22206 (S.D. Fla. Oct. 24, 2011), 

ECF No. 25 at *5 (“the Court lacks sufficient information at this stage of the proceedings to 

evaluate its jurisdictions defenses.”). Plaintiff will be able to proceed only against named 

defendants over whom this court has personal jurisdiction. Call of the Wild, 770 F.Supp.2d at

347-48. After the defendants are named and served, they will have an opportunity to file 

appropriate motions challenging this Court’s jurisdiction and that will be the appropriate time for 

the resolution of this issue. Id.; see also MCGIP, LLC, No. 11-cv-2887; Virgin Records, 2006 

WL 1028956, at *3. Until that time, however, Movant’s personal jurisdiction arguments are 

premature. 

C. Geolocation Technology Places Movant within the Court’s Jurisdiction

Movant argues that “IP addresses may be located geographically to determine the proper 

jurisdiction . . . .” (ECF No. 12 ¶ 6.) Movant is referring to the use of geolocation technology. 

(Id.) Although geolocation technology is not a litmus test for personal jurisdiction, some courts 

have held its shows where an IP address is likely to be located. Call of the Wild, 770 F.Supp. 2d 

at 347 (“publicly available IP lookups reveal only where a defendant is likely to be located. 

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Given that these lookup tools are not completely accurate, this does not resolve the question of 

whether personal jurisdiction would be proper. Ultimately, the Court would still be unable to 

properly evaluate jurisdictional arguments until the putative defendants are properly identified 

and named.”). Putting aside the accuracy of geolocation technology, the technology

recommended by Movant places him with the state of Illinois. See WhatIsMyIPAddress, 

http://www.whatismyipaddress.com (enter “96.35.21.42” in text entry box; then click 

“Additional IP Details” button) (last visited May 2, 2012). This geolocation lookup tool places 

Movant’s IP address in Edwardsville, Illinois. (Id.) Movant, therefore, is within the Court’s 

jurisdiction as physical presence establishes personal jurisdiction. Burnham v. Superior Court of 

Cal., Cnty. of Marin, 495 U.S. 604, 619 (1990) (“The short of the matter is that jurisdiction based 

on physical presence alone constitutes due process . . . .”).

D. Movant Cannot Credibly Claim that Charter’s Compliance with the Subpoena 

Would Unduly Burden Him

Movant claims that the subpoena should be quashed because the subpoena subjects him 

to an undue burden because he’d have to travel across the country to litigate in this district. (ECF 

No. 12 ¶ 8.) Movant, however, is not the recipient of Plaintiff’s subpoena. Movant faces no 

obligation to produce any information under the subpoena issued to his nonparty ISP or travel in 

any way and consequently “cannot claim any hardship, let alone undue hardship.” Voltage 

Pictures, LLC v. Does 1–5,000, No. 10-0873, 2011 WL 1807438, at *3 (D.D.C. May 12, 2011); 

see also Worldwide Film Entm’t, LLC v. Does 1–749, No. 10-0038, 2010 WL 19611962, at *2 

(D.D.C. May 17, 2010) (finding that movant challenging nonparty ISP subpoena cannot 

demonstrate “any burden”); Hard Drive Productions, Inc. v. Does 1–46, No. 11-1959 (N.D. Cal. 

June 16, 2011), ECF No. 19 (“being named as a defendant in a case does not in and of itself 

constitute an undue burden such that the subpoena should be quashed.”). Movant bears the 

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responsibility of proving undue burden, and “the burden is a heavy one,” requiring Movant to 

establish that compliance with the subpoena would be “unreasonable and oppressive.” In re 

Yassai, 225 B.R. 478, 483–84 (Bankr. C.D. Cal. 1998) (citing Williams v. City of Dallas, 178 

F.R.D. 103, 109 (N.D. Tex. 1998)). Movant cannot credibly claim any hardship at this juncture; 

only the nonparty ISP subject to Plaintiff’s subpoena could potentially claim the same. 

The exhaustive list of situations in which a court may quash or modify a subpoena is set 

forth in Fed. R. Civ. P. 45(c)(3). Movant’s only allowable basis for quashing a subpoena is if it 

“requires disclosure of privileged or other protected matter, if no exception or waiver applies.” 

Id. 45(c)(3)(A)(iii). No other 45(c)(3) grounds apply here; in particular, undue burden objections 

properly lie with subpoenaed ISPs, and not with Movant. See First Time Videos, LLC v. Does 1–

500, No. 10-6254 (N.D. Ill. Aug. 9, 2011) (“[I]f anyone may move to quash these subpoenas on 

the basis of an undue burden, it is the ISPs themselves, as they are compelled to produce 

information under the subpoena.”); Call of the Wild Movie, LLC v. Does 1-1,062, 770 F.Supp. 2d 

332, 358-359 (D.D.C. 2011) (describing undue burden test as balancing the burden imposed on 

the party subject to the subpoena, the relevance of the information sought, the breadth of the 

request, and the litigant’s need for the information); Kessel v. Cook Cnty., No. 00-3980, 2002 

WL 398506, at *2 (N.D. Ill. Mar. 14, 2002) (noting that objections based on burden lie with the 

subpoenaed party and rejecting all of plaintiffs’ objections to defendants’ nonparty subpoenas 

except “the objections that are personal to the plaintiffs,” namely “privacy, privilege and 

harassment”). The Court should deny Movant’s motion because only a subpoenaed ISP could 

credibly bring an undue burden argument. 

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III. SUPPLEMENTAL BRIEFING ON THE NATURE OF A BITTORRENT 

SWARM AND GEOLOCATION TECHNOLOGY

At the May 1, 2012 hearing in this action, the Court requested supplemental briefing on 

the nature of a BitTorrent swarm and geolocation technology. A BitTorrent swarm is a group of 

individuals who collaborate to reproduce and distribute a specific unique file. (See ECF No. 6-1 

¶ 8.) In this case, the file in question was a digital video consisting of Plaintiff’s copyrighted 

work. The boundaries of a swarm are established by a hash value that precisely identifies a 

unique file. (See id. ¶¶ 14-15.) When two files share the same hash value, they are identical. For 

example, although a given video might have two versions—low-resolution and high-resolution—

these different versions would be associated different hash values. A hash value is simply a 

fixed-length string that is generated by an algorithm applied to a variable-length block of data, 

such as data contained in a video file. One could compare a hash value to a fingerprint. When 

individuals collaborate to distribute a file with the same hash value, they are collaborating with 

respect to an identical file. Swarms are formed with respect to a given hash value.

The nature of collaboration within a swarm involves sustained message exchange and 

data transfer among peers in a swarm.

1

(See id. ¶ 9.) When a user loads a torrent file into his 

BitTorrent software, the BitTorrent software reads the torrent file to ascertain the location of 

peers in the swarm. (See id.) The user sends BitTorrent-protocol messages to peers requesting 

pieces of the subject file. (See id.) When peers respond with pieces of the file, the user 

immediately begins distributing those pieces to other peers in the swarm. (See id.) This process 

continues until the user has collected all of the pieces of a file. (See id.) The user will continue 

 

1

In BitTorrent vernacular, a given individual is called a peer and the group of individuals who 

collaborate to replicate a file comprise a swarm.

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distributing pieces of the file to peers in the swarm unless he manually exits the swarm. Even 

after he exits the swarm the pieces he distributed will be redistributed by the remaining peers.

With respect to geolocation, geolocation is simply a term used to describe querying 

databases that associate IP addresses with geographic locations. Different databases rely on 

different sources of information and different techniques for analyzing the information. A given 

database can be highly accurate in some circumstances, but highly inaccurate in others. To 

Plaintiff’s knowledge, there is no database that is necessarily highly accurate in all 

circumstances. A plaintiff in a similar copyright infringement action recently had a 

telecommunications expert perform an assessment of geolocation in connection with a hearing 

on a motion to quash. See AF Holdings LLC v. Does 1-1058, No. 12-00048 (D.D.C. 2012). That 

expert, who was located in Florida, found that geolocation databases placed him in locations as 

diverse as Florida, Virginia and New York City. Id., ECF Nos. 38-7, 38-8. He then travelled to 

Washington DC where the geolocation services that were most accurate in the first test placed 

him in Kansas, while geolocation services that were inaccurate in the first test correctly placed 

him Washington DC. Id., ECF No. 38-9. The expert’s conclusion is that geolocation can be 

highly accurate, but it can also be highly inaccurate. Further, there is no way to determine, a 

priori, whether a given result is accurate.

Some courts have held that the use of geolocation establishes good cause with respect to 

personal jurisdiction. AF Holdings LLC v. Does 1-96, No. 11-3335 (N.D. Cal. Nov. 22, 2011), 

ECF No. 29 at 4 (“Plaintiff also represents that it has used geolocation technology to trace the IP 

addresses of each Doe Defendant to California; in other words, Plaintiff has made a prima facie 

showing of personal jurisdiction over each Doe Defendant.”) Other courts have held that it is a 

non-dispositive factor. Call of the Wild Movie, LLC v. Does 1-1,062, 770 F.Supp. 2d 332, 347

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(D.D.C. 2011) (“publicly available IP lookups reveal only where a defendant is likely to be 

located. Given that these lookup tools are not completely accurate, this does not resolve the 

question of whether personal jurisdiction would be proper. Ultimately, the Court would still be 

unable to properly evaluate jurisdictional arguments until the putative defendants are properly 

identified and named.”) In this case, geolocation technology places Movant in Edwardsville, 

Illinois. 

CONCLUSION

The Court should deny Movant’s motion. Movant’s motion suffers from two procedural 

defects: Movant lacks standing to bring the arguments he raises; and Movant fails to comply 

with Federal Rule of Civil Procedure 11. Movant’s substantive arguments do not provide a basis 

to quash Plaintiff’s subpoena: Movant’s personal jurisdiction arguments are premature and 

erroneous; and Movant cannot credibly claim that his ISP’s compliance with Plaintiff’s subpoena 

would unduly burden him. 

Respectfully submitted,

Hard Drive Productions, Inc. 

DATED: May 22, 2012

By: /s/ Paul Duffy

Paul Duffy (Bar No. 6210496) 

Prenda Law Inc. 

161 N. Clark St., Suite 3200

Chicago, IL 60601

Telephone: (312) 880-9160

Facsimile: (312) 893-5677

E-mail: paduffy@wefightpiracy.com

Attorney for Plaintiff

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on May 22, 2012, all counsel of record who are 

deemed to have consented to electronic service are being served a true and correct copy of the 

foregoing document using the Court’s CM/ECF system, in compliance with Local Rule 5.2(a). 

/s/ Paul Duffy

Paul Duffy

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