MOTION – LEAVE TO ISSUE FRCP 45 SUBPOENA Page 1 of 5 

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-67.160.155.160,

 Defendant. 

 Case No.: 3:15-cv-00178-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 effective conferral on this motion. 

PLAINTIFFS 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 

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(2) hours and will provide plaintiff with sufficient information to either name a defendant or 

result in plaintiff dismissing this action. 

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. On notice of this action from Comcast, and prior to any subpoena 

response, a party contacted plaintiff’s counsel and claimed to be the subscriber. The caller 

provided a name and partial address, however, the party refused to provide a phone number. The 

name and partial address of the caller were subsequently confirmed as matching that of the 

subscriber in the Comcast subpoena response. 

The subscriber that called stated they were not the infringer and did not know who the 

infringer might be and asserted two explanations for the observed infringing activity claiming: 1) 

Comcast broke with their standard procedure and installed a Wi-Fi router at the residence that 

had no password protection1

, and 2) they believed residents of a hotel that was near used their 

 

1

 Based on information and communications with Comcast staff, by default Comcast pre-installs 

a 16 digit alphanumeric password on all Wi-Fi routers supplied to customers, an exemplar of 

such being: A772GH18WX89J27. 

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Wi-Fi and the hotel guests were the source of the infringing activity observed. The subscriber 

also claimed there were records of the Comcast error in providing an “open” Wi-Fi and that since 

receiving notice of the suit Comcast had been notified and had corrected the problem, such work 

generally creating a work order or record of the service. 

Plaintiff has since attempted to confer further with the subscriber to obtain the relevant 

records of the Comcast error and correction, but there has been no further telephone 

communication from the subscriber and no response to letters. Plaintiff is still without a 

telephone number to initiate any phone contact. Further, as plaintiff now has a full address of 

the subscriber the following additional facts have been ascertained: 

- Using the full address of the subpoena response, Google Maps locates the 

subscriber approximately 80 meters2

 from the nearest part of the nearest hotel, 

which is beyond the range of conventional Wi-Fi.

- The relevant hotel offers free Wi-Fi to guests, making the attempts to use a 

remote private Wi-Fi signal, even if it could be reached, improbable. 

- Though around the time of initial contact with plaintiff’s counsel observed 

BitTorrent activity on the subject IP address terminated, recently the 

subscriber’s IP address has again become associated with the BitTorrent 

trafficking of content which is consistent with prior activity. Such content 

includes several specific weekly television shows indicating a consistent use of 

the IP address for BitTorrent activity over months that was merely temporarily 

interrupted with the initial threat of this litigation. 

 

2

 It is conceded that Google Maps may be in error and based on an estimate from satellite 

imagery the distance might be 30 meters (plausible range, though unlikely) or as much as 140 

meters. 

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As such, the subscriber’s plausible explanations of the observed infringing activity are 

called into question. Based on the consistency of titles and subject matter observed associated 

with the subscriber’s IP address both before notice of this suit, and in recent activity, plaintiff 

believes the relevant conduct, and the infringing activity is by a permissive user of the 

subscriber’s internet service who would have been granted direct access by the subscriber and 

thus be known to the subscriber. Plaintiff requests leave to issue a subpoena to ascertain the 

occupants of the residence and the identity of all parties who had access to the subscriber’s 

Internet service both prior to the notice of the suit, and after the claimed installation of a 

password, accepting for the sake of argument that subscriber was correct in Comcast failing to 

initially provide a password protected Wi-Fi. 

While the named subscriber is often the proper defendant, plaintiff in this case has 

received communication from a subscriber that expressly and clearly disclaims both any 

participation in, or knowledge of BitTorrent activity. As such, plaintiff wishes to continue their 

good faith investigation as to the identity of the proper defendant as it may well be another now 

unknown occupant of the residence. 

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

infringer with further discovery. 

The clear record before this court is that with further discovery plaintiff is likely to be 

able to identify the actual infringer and avoid naming or further burdening a party who claims to 

be a mere subscriber. In 2014 plaintiff filed a total of 19 actions in this state. The record of these 

cases indicates that in the vast majority of the cases filed by plaintiff a definitive and conclusive 

liable defendant is confirmed. As such, plaintiff’s actions are clearly not merely speculative. If 

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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.” 

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 requests an expedited ruling on this matter as with resumed observed activity, 

should the defendant be maintaining plaintiff’s motion picture in the shared BitTorrent 

publication folder as originally observed, the defendant would have been and would be 

continuing to currently re-publish the motion picture to countless others constituting a continuing 

harm. 

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 

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