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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 SUBPOENA

An anonymous individual (―Movant‖) claiming to be associated with Internet Protocol 

(―IP‖) address 75.5.75.57 filed, through attorney Kevin W. Guynn, a motion to quash the 

subpoena issued to AT&T Internet Services. (ECF No. 18.) Movant denies infringing on 

Plaintiff‘s copyrighted work. (Id. at 2-3.) Further, Movant argues he has standing to quash the 

subpoena issued to AT&T Internet Services. (Id. at 4-5.) Finally, Movant fails to set forth a valid 

reason under the law for why Plaintiff‘s subpoena should be quashed, but instead cites to a 

handful of cases that have limited applicability to the present action and resorts to ad hominem

attacks against Plaintiff. (Id. at 5-8.) For the reasons stated below, Movant‘s motion should be 

denied.

ARGUMENT

This brief consists to four parts. Part I argues that Movant lacks standing to bring the 

arguments he raises. Part II argues that Movant‘s factual denials are not a basis to quash 

Plaintiff‘s subpoena. Part III argues that the cases cited by Movant in support of his arguments 

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are distinguishable from the present case. Part IV argues that Movant‘s ad hominem attacks on 

Plaintiff do not provide a basis for quashing the subpoena.

I. MOVANT LACKS STANDING TO BRING THE ARGUMENTS HE RAISES

Movant argues that he has standing to move to quash Plaintiff‘s subpoena because AT&T 

Internet Service ―effectively transferred to Defendant the right and obligation to object to the 

subpoena since AT&T has indicated it will not provide any objection on Defendant‘s behalf.‖

(ECF No. 18 at 4.) Movant provides no legal authority for this claim of transfer of right to move 

to quash a subpoena. (See generally id.) The general rule is that when a subpoena is directed to a 

nonparty, any motion to quash or modify the subpoena 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.‖). The cases cited by Movant for the opposite proposition (ECF No. 18 at 4) are in 

regards to criminal cases and provide no basis to go against the overwhelming authority that 

holds that Movant lacks authority to move to quash the subpoena issued to a different entity in a 

civil action. See e.g., Imperial Enterprises, Inc. v. Does 1-3,145, No. 11-0529 (D.D.C. Aug. 30, 

2011), ECF No. 43 at *8; MCGIP, LLC v. John Does 1-32, No. 11-22210 (S.D. Fla. Oct. 11, 

2011), ECF No. 13 at *1; Pacific Century International, LTD. v. Does 1-30, No. 11-3035 (S.D. 

Tex. Nov. 16, 2011), ECF No. 10 at *2; First Time Videos LLC v. John Doe, No. 11-00690 (E.D. 

Va. Apr. 18, 2012), ECF No. 25 at *3.

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 

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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 argues that Plaintiff‘s counsel will have made ―a serious 

misrepresentation‖ to one of the courts if Plaintiff‘s counsel were to argue the Movant lacks 

standing to move to quash the subpoena, when Plaintiff‘s counsel has previously stated that 

―Does may then move the court to quash the subpoenas.‖ (ECF No. 18 at 5.) There is no 

misrepresentation. The fact is that Movant does have standing to move to quash the subpoena, 

but only for the limited argument that the subpoena seeks privileged information. Windsor, 175 

F.R.D. at 668. Movant did not make a claim of personal right or privilege anywhere in his 

motion. (See generally ECF No. 18.) Movant‘s motion should therefore be denied, as he lacks 

standing to bring any of his arguments to quash or modify the subpoena.

II. MOVANT’S FACTUAL DENIAL IS PREMATURE AND NOT A BASIS TO 

QUASH THE SUBPOENA

Movant denies infringing on Plaintiff‘s copyrighted work, and argues that ―Defendant 

was not involved in the downloading or file sharing of the adult video described in the Complaint 

in this action.‖ (ECF No. 18 at 3); (see also ECF No. 18-1). A denial of liability, however, is not 

a basis for quashing Plaintiff‘s subpoena. First Time Videos, LLC v. Does 1–500, No. 10-6254 

(N.D. Ill. Aug. 9, 2011), ECF No. 151 (―A general denial of liability is not relevant as to the 

validity or enforceability of a subpoena, but rather should be presented and contested once 

parties are brought properly into the suit.‖); MCGIP, LLC v. Does 1–316, No. 10-6677, 2011 WL 

2292958, at *1 (N.D. Ill. June 9, 2011) (―A general denial of engaging in copyright infringement 

. . . is not a basis for quashing a subpoena.‖); MCGIP, LLC v. Does 1–18, No. 11-1495 EMC, 

2011 WL 2181620, at *1 (N.D. Cal. June 2, 2011) (―[T]he merits of this case are not relevant to 

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the issue of whether the subpoena is valid and enforceable.‖); Voltage Pictures, LLC v. Does 1–

5,000, No. 10-0873, 2011 WL 1807438, at *2 (D.D.C. May 12, 2011) (―A general denial of 

liability is not a basis for quashing the plaintiff‘s subpoena.‖). 

The proper time to raise these factual denials is after Movant has actually been identified 

and named as a party in this lawsuit— the latter being a step that Plaintiff may or may not choose 

to take based on its own evaluation of Movant‘s assertions. Achte/Neunte Boll Kino Beteiligungs 

GMBH & Co., 736 F. Supp. 2d 212, 215 (D.D.C. Sept. 10, 2010) (denying motions to quash and 

stating that ―such defenses are not at issue‖ before putative defendants are named parties); 

Fonovisa, Inc. v. Does 1–9, No. 07-1515, 2008 WL 919701, at *8 (W.D. Pa. Apr. 3, 2008) 

(denying motion to quash and stating that movant will be able to ―raise, at the appropriate time 

[after being named as a party], any and all defenses, and may seek discovery in support of its 

defenses‖). Even if Movant is not the actual infringer, he is the only individual currently known 

Plaintiff that would be able to help identify the true infringer. The Court should deny the 

Movant‘s motion because his factual denial is premature and not a basis to quash a subpoena.

III. THE CASES CITED BY MOVANT IS SUPPORT OF HIS ARGUMENTS ARE 

PLAINLY DISTINGUISHABLE FROM THE PRESENT CASE

Movant cites to several cases that involve different pleadings, a different procedural 

contexts, different facts, and different parties than the instant case. (ECF No. 18 at 5-6); (see also

ECF Nos. 18-4, 18-5, 18-6). The decision in Pacific Century International, LTD. v. Does 1-37, 

for example, was in regards to motion to compel compliance with a subpoena and not a motion 

to quash a subpoena. No. 12-1057 (N.D. Ill. Mar. 30, 2012), ECF No. 23. Further, the motion to 

compel compliance with the plaintiff‘s subpoena was granted in regards to the case brought 

against multiple Doe defendants; the same as instant case. (Id. at 14.) 

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The court in In re: Bittorrent Adult Film Copyright Infringement Cases granted motions 

to quash because the copyrighted ―not subject of a copyright registration.‖ No. 12-1147 (E.D. 

N.Y. May 1, 2012), ECF No. 4 at 2. That concern is not present here. (See ECF No. 1.) 

The order in AF Holdings LLC v. Does 1-135 was simply an order to show cause, which 

the plaintiff complied. No. 11-3336 (N.D. Cal. Feb. 23, 2012), ECF No. 42. The order was not in 

regards to a subpoena, and no motions to quash were granted in the case. The cases cited by 

Movant in support of his arguments are not applicable to the instant case and do not provide a 

basis for the relief sought by Movant.

IV. MOVANT’S AD HOMINEM ATTACKS ON PLAINTIFF DO NOT PROVIDE 

A BASIS FOR QUASHING THE SUBPOENA 

Movant accuses Plaintiff of ―extorting  ̳settlement‘ money from identified Does, and 

there is no intent to actually move forward with the litigation after the  ̳Does‘ have been 

identified‖ (ECF No. 18 at 6) and that ―Plaintiff‘s sole interest in filing this litigation is to extort 

a settlement payment from this Defendant, regardless of his guilt or innocence.‖ (Id. at 8.) Not 

only does Movant fail to provide any evidence for these vicious claims, but the list of 

permissible grounds for quashing or modifying a subpoena does not include ad hominem attacks. 

See Fed. R. Civ. P. 45(c)(3). While Movant goes to great lengths to portray Plaintiff in a negative 

light, there is nothing wrong with a corporation focused on protecting its intellectual property—

except, of course, from the perspective of an infringer. 

Further, Movant‘s statement is misleading. Movant states that ―not a single Doe had ever 

been served with the Complaint and Summons‖ in any of Plaintiff‘s cases. (ECF No. 18 at 6.) 

Plaintiff has named and served several individuals in cases it has brought for copyright 

infringement of its works. See e.g., Hard Drive Productions, Inc. v. Syed Ahmed, No. 11-2828 

(N.D. Ill. Oct. 25 2011); Hard Drive Productions, Inc. v. Gessler Hernandez, No. 11-22206 

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(S.D. Fla. Apr. 9, 2012); Hard Drive Productions, Inc. v. John Doe and Matthew Rinkenberger, 

No. 12-1053 (C.D. Ill. Apr. 24, 2012). Movant’s ad hominem attacks and misleading statements 

do not act as a basis to quash Plaintiff‘s subpoena.

CONCLUSION

The Court should deny Movant‘s motion. Movant lacks standing to bring the arguments 

he raises. Movant‘s factual denials are not a basis to quash Plaintiff‘s subpoena. The cases cited 

by Movant in support of his arguments are distinguishable from the present case. Movant‘s ad 

hominem attacks on Plaintiff do not provide a basis for quashing the subpoena.

Respectfully submitted,

Hard Drive Productions, Inc. 

DATED: June 5, 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 June 5, 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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