MOTION – LEAVE TO ISSUE FRCP 45 SUBPOENA Page 1 of 3

Carl D. Crowell, OSB No. 982049

email: carl@crowell-law.com

CROWELL LAW

P.O. Box 923

Salem, OR 97308

(503) 581-1240

Of attorneys for plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DALLAS BUYERS CLUB, LLC,

Plaintiff,

v.

DOE-73.25.44.231,

Defendant.

 Case No.: 6:15-cv-00219-AC

PLAINTIFF’S MOTION FOR LEAVE TO 

ISSUE FRCP 45 SUBPOENA TO NONPARTY

EXPEDITED RULING REQUESTED

LR 7-1 Conferral

The relevant subscriber from whom discovery is sought is non-responsive to plaintiff’s 

attempts to communicate and as such there has been no conferral on this motion.

PLAINTIFF’S MOTION FOR LEAVE TO ISSUE FRCP 45 SUBPOENA 

TO NON-PARTY

Pursuant to Federal Rule of Civil Procedure 26 and 45, plaintiff moves the Court for an 

order permitting plaintiff to issue an FRCP 45 subpoena for the deposition of the non-party 

identified as responsible for the Internet protocol (“IP”) address used by the Doe defendant to 

infringe plaintiff’s rights. Plaintiff believes the relevant deposition will take no more than two 

(2) hours.

Case 6:15-cv-00219-AC Document 10 Filed 04/10/15 Page 1 of 3
MOTION – LEAVE TO ISSUE FRCP 45 SUBPOENA Page 2 of 3

PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO ISSUE 

FRCP 45 SUBPOENA TO NON-PARTY

1. Introduction

As outlined in plaintiff’s complaint (Dkt. 1) and the prior motion to expedite discovery 

(Dkt. 3) plaintiff is seeking leave to identify the Doe defendant who used a specific IP address to 

infringe plaintiff’s rights. As per the Complaint, the persistence of the activity associated with 

the IP address, which can be filed if requested, indicates the Doe defendant is a permissive user 

of the subscriber’s Internet service and likely long-term resident of the household.

In this case ISP Comcast has identified a singular subscriber that was assigned the IP 

address used by the Doe. However, the identified subscriber refuses to respond to 

communications or participate in any investigation or inquiry. Independent attempts to research 

the name provided by Comcast or any other parties associated with the subscriber’s address 

provide inconclusive results. As with the content associated with the relevant IP address, 

research on parties with the same name of the subscriber might be filed. But as more than one 

person might share a name, plaintiff maintains such should only be submitted on request. 

Reasonably available records simply do not provide any evidence to assist in identifying the 

actual infringer. As such plaintiff is left with the options of proceeding against the subscriber as 

named by Comcast and possibly substituting another party on discovery, or seeking further 

discovery to ascertain the identity of the true Doe defendant prior to naming a party. 

While the named subscriber is often the proper defendant, plaintiff wishes to ensure that 

investigations are complete and proper as there is the often asserted “an IP address is not a 

person” defense and plaintiff submits that in this matter something beyond the mere 

identification of a subscriber by an ISP is proper before a defendant is named.

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2. There is a demonstrated likelihood of plaintiff being able to identify an actual 

infringer with further discovery.

In 2014 plaintiff was party to a total of 19 actions in this state. The record before this

court is that when plaintiff has an IP address that permits further investigation, plaintiff has

successfully confirmed the identity of an infringing defendant the vast majority of the time. If the 

question before the court is whether or not plaintiff is “likely” to be able to identify the actual 

infringer, then based on the proven record the answer is a resounding “yes.” 

 Based on available information and the record before the court plaintiff believes in this 

instance further discovery is warranted to ascertain the identity of the occupants of the address 

assigned the infringing IP address and the identity of the proper Doe defendant. 

3. Conclusion

Plaintiff respectfully requests the Court grant its motion for leave to issue an FRCP 45 

subpoena to the non-party subscriber to depose the subscriber on matters related to the access

and use of their Internet service by occupants of the residence. 

Plaintiff request an expedited ruling on this matter to avoid spoliation as the deletion and 

destruction of files may be occurring.

DATED: April 10, 2015.

Respectfully submitted,

/s/Carl D. Crowell

Carl D. Crowell, OSB No. 982049

email: carl@crowell-law.com

(503) 581-1240

Of attorneys for the plaintiff

Case 6:15-cv-00219-AC Document 10 Filed 04/10/15 Page 3 of 3