IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AF HOLDINGS, LLC,

Plaintiff,

v.

COMCAST CABLE COMMUNICATIONS, 

LLC,

Defendant.

CASE NO. 1:12-cv-3516

Judge: Hon. Gary Feinerman

 

PLAINTIFF’S REPLY TO COMCAST’S MEMORANDUM IN OPPOSITION TO 

PLAINTIFF’S MOTION FO ORDER TO SHOW CAUSE

Comcast Cable Communications, LLC (“Comcast”) filed a memorandum in opposition to 

the Plaintiffs’ amended motion for order to show cause. (ECF No. 11.) Comcast argues that the 

Court should excuse that its failure to file timely objection in four different cases because “the 

timeliness of written objections is not dispositive.” (Id at 2.) Comcast further argues that the 

Plaintiffs’ “subpoenas are overbroad and exceed the bounds of fair discovery, Comcast is a 

nonparty acting in good faith, and Comcast’s counsel was in contact with counsel for the 

plaintiffs.” (Id.) Finally, Comcast argues that “plaintiffs should not be allowed to profit from 

unfair litigation tactics.” (Id.) These arguments, however, do not excuse Comcast’s failure to 

timely file its objection and failure to comply with Plaintiffs’ valid subpoenas.

ARGUMENT

This brief consists of three parts. Part I argues that the timeliness of Comcast’s written 

objections is dispositive. Part II argues that Comcast has not established that unusual 

circumstances and good cause exist for it to file its objections in an untimely manner. Part III 

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argues Comcast’s ad hominem attacks and name-calling do not provide Comcast with a basis to 

file untimely objections to Plaintiffs’ valid subpoenas.

I. THE TIMELINESS OF COMCAST’S WRITTEN OBJECTIONS IS 

DISPOSITIVE

Comcast argues that the Court should excuse that its failure to file timely objection in 

four different cases because “the timeliness of written objections is not dispositive.” (ECF No. 11 

at 2.) Comcast does not further elaborate on this argument. The timeliness of Comcast’s 

objections is dispositive for two reasons. First, the information the plaintiffs seek is under 

imminent threat of destruction and any delay by Comcast can potentially prevent the Plaintiffs 

from pursuing their claims against the infringers of their copyrighted works. See e.g., AF 

Holdings LLC v. Does 1-31, No. 12-20922 (S.D. Fla. Mar. 7, 2012), ECF No. 4-1 at 4 

(explaining that “time is of the essence here because ISPs typically retain user activity logs 

containing the information sought by Plaintiff for only a limited period of time before erasing the 

data. If that information is erased, Plaintiff will have no ability to identify the Defendants, and 

thus will be unable to pursue its lawsuit to protect the copyrighted works.”) (internal citations 

omitted). 

Second, the infringement of the Plaintiffs’ copyrighted work is continuous and ongoing. 

Any delay by Comcast will result in additional harm to the Plaintiffs. See e.g., Pacific Century 

International LTD v. Does 1-37, No. 11-4430 (S.D. Tex. Dec. 16, 2011), ECF No. 2 at 6 

(“because infringement is ongoing and continuous, Plaintiff needs to discover the identities of 

Doe Defendants to take quick actions to prevent further irreparable harm. Without a way to 

contact the Defendants, Plaintiff will continue to suffer ongoing, continuous injury due to 

Defendants’ illegal activities.”). The timeliness of Comcast’s objections, therefore, is highly 

dispositive. 

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Comcast’s delay in objecting to the Plaintiffs’ subpoenas is part of a wider campaign to 

deny and delay the Plaintiffs’, and other similar copyright holders’, ability to protect their 

copyrighted works. Comcast routinely objects to subpoenas issued to it by producers of adult 

content. Even after courts regularly order Comcast to comply with the subpoenas, Comcast fights

tooth and nail to resist complying. See e.g., Millennium TGA, Inc. v. John Doe, No. 12-mc-00150 

(D.C. 2012) (Comcast objected to the plaintiffs court-authorized subpoena, objected to the 

court’s order compelling Comcast to comply with the plaintiffs subpoena, and, finally, filed a 

motion for extension of time to comply with the plaintiff’s subpoena). Comcast has yet to 

provide that plaintiff with the information it sought in its subpoena. Id. Comcast is not a super 

judge that can pick-and-choose which subpoenas it wants to comply with simply because it 

dislikes the adult content producers that issued the subpoena. 

II. COMCAST HAS NOT ESTABLISHED THAT UNUSUAL CIRCUMSTANCES 

AND GOOD CAUSE EXIST FOR IT TO FILE ITS OBJECTIONS IN AN 

UNTIMELY MANNER

Comcast argues that a court has the discretion to consider an untimely objection to a 

subpoena “in unusual circumstances and for good cause.” (ECF No. 11 at 5) (citing Yousuf v. 

Samantar, 451 F.3d 248 (D.C. 2006). This is not such a case. First, there are no unusual 

circumstances present here. Plaintiffs have served dozens of subpoenas on Comcast seeking 

basically the same information sought in the subpoenas at issue here. In the past, Comcast has 

either complied with the subpoenas, or, more recently as part of its campaign to deny adult 

content producer plaintiffs the ability to protect its copyrighted works, it has filed timely 

objections to plaintiffs’ subpoenas. Comcast’s new strategy of simply ignoring the subpoenas 

until the Plaintiffs are forced to file a motion for order to show cause does not establish that there 

are unusual circumstances present. 

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Second, good cause does not exist to justify Comcast untimely objections. Comcast’s 

argument that good cause exists is that Plaintiffs’ “subpoenas are overbroad and exceed the 

bounds of fair discovery.” (ECF No. 11 at 5.) Every subpoena issued by the Plaintiffs in the 

underlying cases, however, was issued pursuant to a court order. AF Holdings LLC v. Does 1-31, 

No. 12-20922 (S.D. Fla. Mar. 12, 2012), ECF No. 6; Pacific Century International LTD v. Does 

1-37, No. 11-4430 (S.D. Tex. Jan. 13, 2012), ECF No. 5; Sunlust Pricutres, LLC v. Does 1-120, 

No. 12-20920 (S.D. Fla. Mar. 13, 2012), ECF No. 6; First Time Videos LLC v. Does 1-76, No. 

12-20921 (S.D. Fla. Mar. 13, 2012), ECF No. 6. Each court order set forth the broadness of 

subpoena and determined that the discovery was fair. Plaintiffs issued their subpoenas in 

compliance with the underlying courts’ orders. If Comcast felt that any of the underlying court 

orders were erroneous, it could have filed a motion for reconsideration in any of the cases. 

Comcast chose not to do so and instead simply ignored subpoenas issued to it pursuant to valid 

orders issued in United States District Courts. It is not Comcast’s place to assert veto authority 

over the orders of Federal Courts, or to challenge the validity of the underlying Courts’ orders in 

the present action, which authorized service of those subpoenas on Comcast. 

Comcast states that “[s]ubpoenas identical to the ones at issue have been found by 

numerous courts—including the Northern District of Illinois—to be overbroad and exceeding the 

bounds of fair discovery.” (ECF No. 11 at 5.) Comcast cites to no authority for this proposition. 

In fact, none of the cases cited Comcast have found a subpoena to be overbroad or exceed the 

bounds of fair discovery. (See generally ECF No. 11.) Instead, the cases cited by Comcast 

involve denials of discovery requests or granting of motions filed by defendants or putative 

defendants in the actions. (ECF No. 11 at 5-9.) Comcast cites to only one case where an Internet 

service provider challenged a subpoena. (Id. at 10) (citing Pacific Century International v. John 

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Does 1-37, 2012 WL 1072312 (N.D. Ill. 2012). The court in Pacific Century, however, granted

the plaintiff’s motion to compel compliance with its subpoena in regards to subpoenas that 

sought the identifying information of party Doe defendants. Pacific Century, No. 12-1057 (N.D. 

Ill. March. 30, 2012), ECF No. 23. It only denied the motion to compel in regards to non-party

individuals. Id. All four of the underlying cases at issue here solely involve party Doe 

defendants. Thus, the lone support that Comcast can point to relating to the validity of a 

subpoena served on an Internet Service Provider stands for the proposition that Comcast must 

comply with the Plaintiffs’ validly-issued subpoenas. 

Instead of focusing on legal arguments and legal authority regarding Plaintiffs subpoenas

and the grounds for objecting to them under Federal Rule of Civil Procedure 45, Comcast makes 

several substantive arguments (i.e. objecting on the grounds of personal jurisdiction, joinder and 

arguments as to the merits of factual allegations) on behalf of its subscribers. Courts increasingly 

recognize the absurdity of Comcast’s attempts at usurping judicial authority from its subscribers. 

One federal judge described Comcast’s attempts to make arguments on behalf of its subscribers 

as “pretty amazing.” Mot. to Quash Transcript at 95-96, AF Holdings v. Does 1,058, No. 12-cv00048-BAH (D.D.C. 2012), Apr. 27, 2012. Another judge was simply confused by Comcast’s 

borderline sanctionable behavior of raising arguments on behalf of its subscribers. Mot. for 

Clarification Tr. 15, Lightspeed Media Corporation v. John Doe, No. 11-L-683 (Ill. 2012), June 

4, 2012, attached hereto as Exhibit A (“What I don’t understand is where and why your industry,

and Comcast, in particular, has taken the position that it is not a waste of time and a sanctionable 

conduct on the ISP’s part for asserting these repetitively and past the point of giving the court 

any new information.”).

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Comcast does not establish any conceptual link between the relief it seeks—being 

excused from complying with Plaintiff’s subpoena, and even the obligation to timely assert an 

objection—and the legal standard for evaluating its request for such relief. Federal Rule of Civil 

Procedure 45 sets forth an exhaustive list of grounds on which a nonparty may move to quash or 

modify a subpoena. Fed. R. Civ. P. 45(c)(3). Those grounds do not include a nonparty’s selfendowed immunity from even asserting a timely objection, or disingenuous concerns over 

personal jurisdiction over nonparties, or joinder in cases where there is not a plaintiff. Id. In fact, 

Plaintiff is not aware of a circumstance where a nonparty avoided compliance with a subpoena 

based on its subjective views on joinder.

Comcast’s ad hominem attacks and name-calling do not provide Comcast with a basis to file 

untimely objections to Plaintiffs’ valid subpoenas.

III. COMCAST’S AD HOMINEM ATTACKS AND NAME-CALLING DO NOT 

PROVIDE ITWITH A BASIS ALLOWING TO IGNORE AND FILE 

UNTIMELY OBJECTIONS TO DISTRICT COURT-AUTHORIZED 

SUBPOENAS

Finally, and obviously recognizing the weaknesses of its other arguments, Comcast has 

reduced itself to making numerous ad hominem attacks against Plaintiff, those issuing the other 

subpoenas at issue here, and their counsel. (ECF No. 11 at 11-14.) Comcast provides no 

evidence for these baseless claims, and instead attempts to draw the Court’s attention away from 

its meritless legal arguments through character attacks. The Court should strike those portions of 

Comcast’s response as redundant, immaterial, impertinent, and scandalous under Rule 12(f) of 

the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(f) (“The court may strike from a 

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 

matter.”). The truth of the matter is that Plaintiff and the other movant companies do not engage 

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in any abusive or deceptive legal tactics, and the movants and their counsel have never faced 

sanctions, disbarment, or punishment of any kind. The Court should not let Comcast’s vicious, 

unsubstantiated character attacks stand, and should strike Comcast’s reply.

It is, of course, odd that Comcast would criticize the content of the movants’ copyrighted 

materials, while at the same time running interference in Federal Courts for those who allow use 

of their IP addresses to steal it. Comcast goes to great lengths to paint the movants as the 

offenders or perpetrators in this case. The reality is that each movant is the victim here. The 

infringement of their copyrighted works is taking place on a massive scale, even as Comcast 

expends tremendous legal resources to prevent the identification of the infringers. Within an hour 

of posting one of its copyrighted works online, thousands of infringers gain unauthorized access 

to the work and obtain free copies of it without movants’ permission. The infringement is 

continuous, on-going, and to great detriment to the movants. In order to remedy the situation, 

the movants are forced to spend large amounts of money hiring forensic investigators and 

lawyers in order to pursue the relentless infringement of its copyrighted work. This takes time 

and the movants are forced to wait patiently, while the infringement continues to occur on a daily 

basis, and third-parties, such as Comcast, routinely delay the relief that the movants are entitled 

to under Federal copyright laws. It is difficult for the movants to run their businesses under such 

conditions. 

Comcast’s main contention with the movants is that their counsel may Comcast’s 

subscribers through either a letter of telephone call. However, as one judge has recently pointed 

out, it is difficult for Comcast to claim that contacting an Internet subscriber is harassment when 

that is exactly what Comcast does as soon as one of its subscribers misses a payment. Mot. for 

Clarification Tr. 19-20, Lightspeed Media Corporation v. John Doe, No. 11-L-683 (Ill. 2012), 

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June 4, 2012, attached hereto as Exhibit C (“You’re not about to take that position with your 

subscribers because you don’t like your subscribers when they don’t provide their money to you 

or otherwise behave as subscribers.”). Comcast participates in the very same behavior it 

condemns.

Comcast’s ad hominem attacks against the movants are made worse by the fact that it is 

not even a party to the underlying case. Comcast first ignored Federal Court subpoenas served 

upon them, and then seemingly made an appearance for the sole purpose of attacking the 

movants. Courts increasingly recognize the absurdity of Comcast’s attempts at usurping judicial 

authority from its subscribers. As set forth above, one federal judge described Comcast’s 

attempts to make arguments on behalf of its subscribers as “pretty amazing.” Mot. to Quash Tr. 

95-96, AF Holdings v. Does 1,058, No. 12-cv-00048-BAH (D.D.C. 2012), Apr. 27, 2012 (Ex. 

A), while an Illinois Circuit Court judge was simply confused by Comcast’s borderline 

sanctionable behavior of raising arguments on behalf of its subscribers. Mot. for Clarification Tr. 

15, Lightspeed Media Corporation v. John Doe, No. 11-L-683 (Ill. 2012), June 4, 2012 (Ex. B) 

(“What I don’t understand is where and why your industry, and Comcast, in particular, has taken 

the position that it is not a waste of time and a sanctionable conduct on the ISP’s part for 

asserting these repetitively and past the point of giving the court any new information.”). 

Comcast is not a super judge that can pick-and-choose which cases it believes are sufficiently 

meritorious before responding to a subpoena. Nor does a nonparty, such as Comcast, have any 

right to make an appearance in a case just to attack a litigant it does not like.

While the movants have no doubt that this Court will continue to focus on the legal 

merits of the case, other Courts have been persuaded by Comcast’s ad hominem attacks. (See 

e.g., ECF No. 11 at 12-13.) The movants wishes to alert the Court to Comcast’s tactics and 

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moves the Court to strike the portion of Comcast’s response based solely upon them under Rule 

12(f) before any legal decisions are influenced by character attacks. The Court should strike

those portions Comcast’s reply as redundant, immaterial, impertinent, and scandalous under 

Rule 12(f) of the Federal Rules of Civil Procedure.

Respectfully submitted,

AF Holdings, LLC,

DATED: June 8, 2012

By: 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 June 8, 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.

 /s/ Paul A. Duffy

PAUL A. DUFFY

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