rN THE CTRCUTT COURT OF COOK COLrl\Ty, ILlnVOrS COT]NTY DEPARTMENT - LAW DTVISION GUAVA, LLC,

Plaintiff,
Case

,:.,

No. 2Ol2-L-007363

v.

SKYLER CASE,

Hon. Sanjay T, Tailor Calendar W ) )

Defendant.

MOTTON TO QUASH AND MOTTON FOR PROTECTTVIE ORDER ON BEHALF OF JOHN DOE 66.44.41.180 NOW COMES John Doe 66.44.41.1801 ("Movant'), by and throujh counsel, and moves '1
to quash Plaintiff s third-party subpoenas, showing the Court as follows:

A. Movant [Ias Standing

To Challenge The Subpoena.

issued by Plaintiff.

There is no question that Movant has standing to challenge the

lt is well-recognizeC that the "Cecision to remain anonymous...is

speech protected by the First Amendment."

an aspec of the freedom

of

'n,514 U.S. 334, ACLU,

342 (1995). The use of the internet does not destroy this fundamental right See Reno v.

521 U.S. 844, 870 (1997) (recognizing there is o'no basis for qualifuing t

level of First
s pn.,,acy

Amendment scrutiny that should be applied'to the internet.) Even if a cus

interest in its subscriber information is minimal or exceedingly small (a
does not concede), "parties need only have some personal right or

which Movant
in the information

privi

sought to have standing to challenge a subpoena to a third party."

Thi

Does 1-108,2012 U.S. Dist. LEXIS 25400,7-8 (D. Md. February 28,201 ) (internal quotation

' Plaintiffhas identified Movant only by the above-referenced IP ("Internet protocol") by the Internet Service Providers ('ISP') to computers connected to the Internet. For in the memorandum, it is appropriate for Movant to file this motion under a pseudonym.

resses-numbers assigned
that

will

be made clear

marks and citations omitted). Consequently, Movants have standing to c seeking their personal information.

llenge the subpoenas

B. The Discovery Sought Would Cause Undue Bu

Embarrassment. "The court may at any time on its own initiative, or on motion

Oppression, and
any parfy or witress,

make a protective order as justice requires, denying, limiting, cond discovery

ing, or regulating
disadvantage, or the court to issue

to

prevent unreasonable annoyance, expense,

oppression." illinois Supreme Court Rule 201(c)(1). "Rule 201(c) protective orders as justice requires, without regard to who requests the not require the petitioner to establish or even assert standing to seek the o Diocese, No. 3-03-0775,2004I11. App. LEXIS 823, *5

ief. ... The rule does ." Bush v. Catholic

(Il. App. Ct. J

29,2004). Further,

"[a] party has standing to move to quash a subpoena

addressed to

if

the

subpoena

infringes upon the movant's legitimate interests." United States v. Rani, (7th Cir. 1982) (citing In re Grand Jury,619 F.2d,1022, 1027 (3d Cir.
Mkts. Ins- Consultants, Iruc. v. Lynch, Case No. 11 C 9181,2012 U.S.

i,670 F.2d 702,712

980)); accord Special

LEXIS 61088, *4-6

(N.D.

Ill. May 2, 2Al2)

(movant had standing

to move to

quash

to avoid

oppression,

embarrassment and undue burden imposed on movant, not on third

subject to subpoena).

The subpoena seeks Movants' records, identifies them (by their IP addres

) and required notice

to them pursuant to statute. See 47 U.S.C. $ 55i.2 These facts are su cient to give Movant
standing. Yalero Energt Corp. v. United States, Case No. 06 C 6734, * -4 (N.D. Il1. Aug. 23,

Plaintiff moved the court to authorize d.isclosure of "personally identifiable in alleged co-conspirators) pursuant to Section 551 of the Cable Communications Policy Authorizing Order fl 2. *47 U.S.C. $ 551 precludes a cable operator... from disclosi information unless itnotifies the subscriber." Pacific Century Int'I. v. Does l-3 1,No. 1 LEXIS 82796, *8 (N.D. Il1. Jun. 12,2012). But "the CCPA provides that only 'a personally identifiable information concerning a cable subscriber pursuant to a court (emphasis added). Because plaintiffs are not govemment entities, the CCPA does subpoena." Interscope Records v. Does 1-7,494 F. Supp. 2d388,390 (E.D. Ya.2AA7) ( framework for fprivate parry]subpoenas to identify intemet infringers ... specifically I provides another basis for revoking the order authorizing discovery and quashing the

of

subscribers" (i.e.,

('CCPA"). Motion for

its subscribers' personal

I C 9064,2012

U.S. Dist.

entity r]r.ay obtait ...'47 U.S.C. $ 551(h)

arthoize their ex

parte

ng "Congress provided a

u.s.c. $ 512(h)."). rhis

nas issued thereunder

2007) (party who

"is identified in the summons and is entitled

to

tice

of

the summons

had standing to move to quash).3

Movan has grounds to seek such relief by psuedonym' "[R]eq

have been granted when anonyrnity is necessary to preserve pnvacy m a

for pseudonyrnity
of a sensitive and

highly personal nature." Thirct Degree Films,2011 U.S. Dist. LEXIS

omitted). "An allegation that an individual illegally downloaded adult

30, at

*i1

(citation

likely goes
"Defendants' motions

to fsuch] matters." /d. Anonymity is required to protect Movant's privac to quash subpoenas for the very pulpose of protecting their identiffing i
allowed to proceed anonymously because assessing these preliminary defendants' identities causes plaintiffs no harm." CineTel Films, Inc- v-

ion ... should be

without knowing
1-1,052, Civil No.

JFM 8:11-cv-02438,2A12U.S. Dist. LE)(IS 47701,*5 n'2 (D' Md' Apr' ,2012).

In weighing a motion to quash in such cases, the Court must bal

the injured part[y] with an [slc] forum in which

"the need to provide grievances" against the

[it] may

seek redress fi

need to protect ISP subscribers from the "fear that someone who

wi

to harass or embarrass
order to discover therr

them can file a frivolous lawsuit and thereby gain the power of the court

identity." Columbia Ins. Co. v. Seescandy.com,lS5 F.R.D. 573, 578 (N' . Cal.1999). The Court
must consider
case
o'the

expectation of privacy held by ... innocent users who

y be dragged into the

(for example, because they shared an IP address with an alleged

inger)." London-Sire privacy interests of to court documents."

have a privacy

Records, Inc. v. Doe

1,542F. Supp- 2d 153, 179 (D. Mass' 2008)'

innocent third parties weighs heavily against the public's interest in Third Degree Films,2011 U.S. Dist. LEXIS 128030, at

tl1.

Internet

interest created by Congress." Discount Video Ctr., Inc. v. Does l-29 Civ. A. No. 12-10805-

NMG, 2012IJ.S. Dist. LEXIS 112518, *15 (D' Mass. Aug. 10, 2012) "Individuals generally possess a reasonable expectation of privacy in
The rule applies even though Movant is not expressly named as a party. Putman v *2 (S.D. I1l. Jan. 6, 2009) (non-p 08-MC_S6_MJR_CJp, 2009 U.S. Dist. LEXIS 327, expense had standing to quash subpoena). Even non-parties have standing to object named parties agree that the disclosure is relevant. Shields Enters., Inc. v- First Cl 1988 U.S. Dist. LEXIS 14950 (N.D. Il1. Dec.28, 1988).
3

iting 47 U.S.C. $ 551).

ir home computers."
Auto Mall,1nc., Civil No. subject to undue burden and subpoenas, and even if the Corp., No 86 C 10213,

united states v. Lifshitz, 369 F.3d 173, 190 (2d

cir.

2004). An

s ability to

access a

subscriber's information "cannot be sufficient to extinguish a reasonable

ion of privacy." oreover, the Illinois

those who place their

United States

v.

Warshak, 631

F. 3d 266, 286-87 (5th Cir.

2010).

Constitution sets out even broader privacy protections than federal law

information in the hands of third parties. See People v. Jackson, 116 I1l.
N.E. 2d 85 (I11. Ct. App. 1983) ("the right to privacy is not waived by pl
hands of a bank. The individual can

.3d 43A,434,452
these records in the

still legitimately expect that her fi

ial records will not be

subject to disclosure.").

Any disclosure of information identiffing Movant would

between public opprobrium and private blackmail on spurious clai

them

to a choice

In the pornography
risk of false positive
.." and the nature

infringement cases that are Plaintiffs counsel's stock in kade, the "hi identifications ... 'horror stories' of harassing and abusive litigation

of the copyrighted work in this case creates the possibility of undue

em

and harm

were a Doe defendant's name to be publicly, but erroneously, linked to

illegal downloading

of the plaintiffs copyrighted work." Digital Sin., Inc. v. Does l-27,12

U.S. Dist. LEXIS 78832, *12-13 (S.D.N.Y. June 6, 2012).

iv.3873 (JMF), 2012

ln such cases, there is a risk not only of public embarr misidentified defendant, but also that the innocent defendant may an unjust settlement with the plaintiff to prevent the disseminal surrounding unfounded allegations" The risk of a shake-down when the claims involve allegations that a defendant downloaded sexually explicit material.
Patrick Collins, Inc. v. Does
(S.D.N.Y. Jute 12,2OL2). "[T]he practical reality of these types of
proliferated across the country-is that almost all end in settlement and

for

the

coerced into

of publicity
compounded

distributed

l-4, 12 Civ. 2962 (HB), 2012 U.S. Dj . LEXIS

82253, *4

which, as noted, have

,

if any, are resolved

on their merits." Third Degree Films, Inc. v. Does l-108, No. DKC 11- 007,2012 U.S. Dist.

LEXIS 59233,*ll-12 (D. Md. Apr.27,2012) (citing SBO Pictures,Inc.

v.

Does l-3036, No. 11-

4220 5C,2011 U.S. Dist. LEXIS 137361, *10-12 O{.D. Cal. Nov. 3A,201 )).

Plaintiffs request for voluminous discovery unrelated to De

Movant's reasonable privacy interest is not justified, in light of its counsel
such discovery of personal information about ISP subscribers to coercq

t that would violate

s track

record ofusing

into unwarranted

settlement payments" See, e.g., Hard Drive Prods., Inc. v. John Doe, Ci . A. 2012 U.S. Dist. LEXIS 89937, *9 (N.D. I1l. June 26,2012) (discussing

No. 11 CV 8333,
litigation tactics , broad, and

employed in mass copynght litigation lawsuits and denying plaintiff

prejudicial early discovery") (Prenda Law for plaintiff).

C. This Court Does Not llave Jurisdiction Over Movant.

1.

Illinois Long-Arm Statute.

Section 2-209 of the Code of

Civil Procedure

sets forth when

Il

is courts

will

exercise

personal jurisdiction over

a nonresident defendant. See 735 ILCS

-209. Subsection (a)

subject a nonresident

governs specifrcjurisdiction and lists fourteen (14) different acts that co

defendant

to the jurisdiction of an Illinois court. 735 ILCS

512-2

)(1) through (aXla).

Plaintiff has failed to specifically plead the grounds for jurisdiction over the named Defendant,
Skyler Case. Plaintiff appears to be arguing that

it owns computer

ms based somewhere

(notably Plaintiff has not pled that the computers are in Illinois), bu has averred that the
computers are
o'accessible

to individuals in Cook County, Illinois."

int !f4). In fact,

LLC reflected on the
company locateci in
whether Defendant

Plaintiff has failed to state in its Complaint whether it is in fact the Guav

Illinois Secretary of State website, or

another jurisdiction.

if it is, in fact, a limited liabili

has failed to iden

It is also noteworthy that Plaintiff

actually resides in the jurisdiction. See Complaint.

Plaintiff has alieged no facts that would demonstrate that

substantial activity in Illinois and, as discussed infro, all but Movant is

has engaged in
a resident

of the state

of Illinois nor has Movant engaged in any activity, substantial or

, within the State

has

of

Illinois. As such, Plaintiff has failed to allege that this Court

Movant, and the subpoena should be quashed.

ific jurisdiction over

Subsection (b) governs general jurisdiction and lists four

none

ol which

are

applicable to Movant. 735 ILCS 512-209(b). Subsection (c), a

"

[1" provision, permits

Illinois courts to

exercise jurisdiction

on any other basis now or h

735

Iter permitted by the

Illinois Constitution and the Constitution of the United States.

catchall provision permits an Illinois court

CS sl2-2A9(c). This iction to the extent

Cir.1995); Baltimore inois long-arm statute
as interpreted by

to exercise personal j

permitted by federal due process. Klump v. Duffus,7l F.3d 1368,1371 (

&

O.R. Co. v. Mosele,368 N.E.2d 88,92

(Ill.

1977) (holding that the

extends personal jurisdiction to the extent permitted by the due process

International Shoe.)

The subpoena seeking Movant's personal information should Plaintiff to proceed without quashing this subpoena would allow general in Illinois against any person across the country, or even the world,
they are a "John Doe", an entirely unnamed party, or a so-called o'co the internet. This offends the traditional notions of fair play and substanti
the United States Constitution.International Sltoe,326 U.S. 310, 316 (1
I

quashed. Permitting isdiction in any court

as a

so

plaintiff claims
allegedly using

justice guaranteed by
).

2. Federal Due Process.

Plaintiff s complaint is absolutely silent as to the Court's exercise of Movant. Plaintiff has therefore not made a prima facie showing of
Consequently, the motion to quash should be granted.

jurisdiction over

over Movant.

Federal courts may exercise personal jurisdiction over individuals the jurisdiction. See, e.g., United States v. Henderson,2A9 Fed. Appx. 40

domicile is within

4A2 (5th

Ct.2A0O;

Milliken v. Meyer,311 U"S. 457,463-64 09aU; Heartstation, Inc. v. J.L.

.,2003 U.S. Dist.

in a forum state or

LEXIS 5659, *7 Q.{.D. Illinois April 3,20A3) @oldrng "[a] defendant domi

who has activities that are "substantial" or "continuous and systematic" i subject to the general jurisdiction of that state") (citing Helicopteros Nacionales de Columbia,
S.

v. Hall,466 U.S. 408, ie showing to support

414-15 (1984). For Movant, however, Plaintiffhas failed to make a prima

any purported basis for jurisdiction. The only jurisdictional facts alleged

Plaintiff are the IP

addresses identifying Movant. Not only does this submission not indicate

Movant is a resident of

Illinois;

it

zuggests that Movant was outside

of Illinois when the allegedly infringing activity took

that many tools freely

place. As explained above, Plaintiffs counsel has previously avallable

to the public help reveal where a person using

a particular IP

is likely to

be

physically located.

Thus, the available evidence-which was

in

Plaintiffs

before

it

filed

its

Complaint-indicates that the Plaintiff had no business whatsoever invoking

and using that invocation to obtain a discovery order. With no evidence

is Court's jurisdiction

ins the claim that

Defendants are "residents" of Illinois, and with the only proffered allegations supporting the opposite conclusion, &e Court cannot exercise personal jurisdiction over Movant.

In order for a court to exercise personal jurisdiction over a non

defendant, suit
Clause.a The

g, non-resident of the Due

Process

in the forum at issue must be consistent with

the

Illinois long-arm statute has become co-extensive with the

process requirements

under the federal and Illinois constitutions. Keller v. Henderson, 359

IIl.

. 3d 605,

6tt-6t2,834
theoretically

N.E.2d 930,936 0ll. App. 2005). Moreover, although Illinois due process could diverge at some point from federal due process requirernents, courts

held that "because

Illinois courts have not elucidated any 'operative difference between the limi imposed by the Illinois Constitution and the federal limitations on personal jurisdiction,' the two constitutional analyses
collapse into one." Allied Vqn Lines, Inc. v. Gulf Shores Moving

&

Iec., No. 04-C-6900,

2005 U.S. Dist. LEXIS 6244, slip op. at 5 (it{.D. Illinois February 23,2005) (

ngHyatt Int'l Corp.

under the Illinois
defendant to defend

v. Coco,302 F.3d 707,715 (7th Ck.2002)). That being said, "[d]ue

Constitution requires that it be 'fair, just, and reasonable to require a
an action in Illinois, considering the quality and nature of the defendant's ac

which occur in Illinois

or which affect interests located in Illinois."' Keller, 359 I1l. App. 3d at 19, 834 N.E.2d at 942
(quoting Rollins v. Ellwood,l4l T11.2d2M,275,565 N.E.2d 1302 (I11. 1990). Accordingly, a plaintiff
A court's exercise of personal jurisdiction over non-consenting, non-resident defen<lants must stahrte. The Illinois long-arm statute reaches as far as the Due Process Clause will permit. See, e F.Supp. 1160,1164 (N.D. Il1. 1995) ("[T]he Iliinois long-arm statute is now co-extensive with the I
a

tionally be authorized by Vandeveld v. Christoph, 877 its ofdue process.").

must demonstrate that (1) the non-resident has "minimum contacts" with the forum and that (2)
requiring the defendant to defend its interests in that state "does not offend notions of fair
31

play and substantial justice."' Int'l Shoe Co. v. Washington, 326 U.S.

,316 (1945)

(quoting

Millilrenv. Meyer,3l1U.S. 457 at 463). The minimum contacts

to confer jurisdiction

depend on whether specific or general jurisdiction is asserted. MacNeil v. Trambert,932 N.E.2d

441, 445-46

(Ill. App. 2010). General jurisdiction is

satisfied when

defendant's general

business contacts within the forum state are continuous and systemati

Id. at 446.

Specific

jurisdiction exists when the defendant purposefully directs his activities

cause

the forum state or the Burger King Corp. v.

of action arises out of the defendant's contacts with the forum

Rudzewicz,471 U.S. 462,472 (1985); MacNeil,932 N.E.2d at446.

Plaintiff has not alleged that this Court has specific or general
Instead

iction over Movant.

it

appears to have merely partially pled a conspiracy, and claims i which the alleged co-

conspirators are mentioned. Therefore, Plaintiff has failed to proffer a basis for this Court's

jurisdiction and the Court lacks jurisdiction over Movant. Pace

Express Products, Inc., 945 N.E.2d 1217, 1221 (I11. App. 201 1) ("When
ing jurisdiction over

a nonresident defendant, a plaintiff has the burden of establishing a prima facie case for
jurisdiction."). In addition, as discussed herein Movant is not a resident o the state of Illinois nor
has Movant engaged in any activity, substantial or otherwise,

within the

of Illinois.

D. Information about Movant Is Not Relevant or Necessary to the Pending Action. "[I]f
a petitioner cannot satisfu the section 2-615 standard,

it is c

r that the unidentified

necessary." Stone at

individual is not responsible for damages and the proposed discovery is 389. "The right to discovery is limited to disclosure regarding matters
matter involved in the pending action." Skonberg v. Owens-Corning Fi

ant to the subject

rglas Corp.,215 Il1. Constitution forbids

App. 3d 735, 744 (1991);

ill.

Sup. Ct. R. 201(bX1). The Iliinoi

unreasonable invasions of privacy. People v. Nesbitt,405 I11. App. 3d

(Ill. App. Ct. 2010).

" Kunkel v. Walton,

"In the context of civil discovery,

reasonableness

is a function of relev

l791ll- 2d.519, 538 (1997). "Discovery should be denied ... when there
that the requested discovery is relevant." TTX Co. v.

insuffrcient evidence

Witley,295

I1l. App. 3d s48, 557 (1998).

To be relevant to the pending action, the requested discovery

conspiracy claims. But Plaintiff has not specifically alleged that with Defendant, violated Plaintiffs rights, or have any discoverable in did. When evaluating relevance, "a court is not required to blind itself to

ust bear on the civil

personally conspired
ion about anyone who purpose for which a

parly seeks information." Oppenheimer Fund, Inc. v. Sanders,437 U.S.

40,352 rt. 17 (1978).

Plaintiffs true purpose for the discovery requested-to leverage

settl

from identified
to any proper use in
Oppenheimer Fund attempts to
See

subscribers, without ever naming them as defendants-is wholly irrelev

this action.s

See

Psc. Century,2012 U.S. Dist. LEXIS 44368, *17 (citi

and finding that "the complaints' allegations of

civil conspiracy are only unjustified

bolster the obtaining of irrelevant discovery about non-parties") (Prenda also Youle v. Ryan, 349

w for plaintiffs).

lll. App. 3d 377, 381 (2004)

(questioning relev

of medical records
ion of non-parties
a

of hundreds of third parties); TTX Co.,295 lll. App. 3d at 557-58 (tax i

to

case irrelevant

to pending action). As in Pacific Century, "the plai iffs have sued only

single defendant ... but are seeking ... discovery about other IP addresses
users who are not joined as defendants."

longing to computer

Id. at *12. Plaintiff s conc

claim that subscriber

information

is

"relevant and material

to this matter" is

insuffici

to justify

access to

information identifiring Movant and thousands of others at IP

country through a single lawsuit.

located all over the

Moreover, the discovery sought by subpoena is not necessary.

become discoverable merely because

ation "does not

necessity standard."

it is relevant. It must [also] meet

Illinois Educ. Labor Relations Bd. v. Homer Cmty. Consol. Sch. Dist.,13 m.2d29,44 (1989).

See Oppenheimer Fund,437 U.S. at 352 ("Respondents' attempt to obtain the class cannot be forced into the concept of'relevancy' ... The diffrculty is that respondents do any bearing that it might have on issues in the case.); Digiprotect USA Corp. v. Does l2011 U.S. Dist. LEXIS 40679, +2 (S.D.N.Y. Apr. 13,2011) ("The court... remains

bers' names and addresses

seek this information for No. 10 Civ. 8759 (TPG) med[] that defendants

over whom the court has no personal jurisdrction

and expense required to assert their rights.").

will simply

settle with plaintiff ra

[than] undertake the time

Plaintiff alleges, and the sole named Defendant has already admitted, "
participation in the conspiracy." Complaint

existence of and his needs no information

!i

16; Answer u 16. Plainti

about other ISP subscribers to make out its case. Nor is discovery in

is action necessary to
in Pacific Century,

Plaintiffls pursuit of any claim against the alleged co-conspirators. Again,

denying discovery about non-party IP addresses will not lea without a remedy to uncover the identity of these and other infringers. The plaintiff[] need merely sue each IP address in the the address is located, and then subpoena the ISPs for identi pertaining to that IP address. What the plaintiff[] may not improperly use court processes by attempting to gain information of IP addresses located all over the country in a single action, many of those addresses fall outside of the court's jurisdiction.
1d.,2012 U.S. Dist. LEXIS 44368,*17.

the plaintiffs
copyright ict in which information however, is t hundreds ially when

The Illinois Supreme Court Has Already Examined The Meth Used By Plaintiff To Seek Ex-Parte Discovery,Issued A Supervisory Order To A S Clair County Judge, And Quashed All Subpoenas Issued.
Movant adopts and incorporate Section tII D of the Motion to Quash
2A7 38.253.29 arid205.178.93.62

E.

by John Does

cnAugust 21,2012, as if fully set forth

10

F. Subpoenaed Documents Must Be Produced to the Court, Not

Plaintiff
s subpoenas

Counsel.

to the ISPs request production of records directl to its counsel, Prenda

ts must be a subpoena

Law. This is contrary to Illinois procedure, under which subpoenaed

produced to the court.

"tA]s distinct from discovery, which is the parties'

is a judicial process or court writ so that subpoenaed materials should be court. The court, then, determines the relevance and materiality of the
whether they are privileged, and whether the subpoena is unreasonable or

ivered directly to the materials,

" People

v.

Walley,575 N.E. 2d 596,598 (Ill. App. Ct. 1991) (citingPeople ex rel. F, her v. Carey,77

lll.

2d259,265,32III.Dec" 904,396 N.E.2d 17 (Ill. 1979)).If production is

itted to proceed, a

protective order is warranted that properly redirects the path of production to the Court.

G. Conclusion.
Plaintiff has not properly alleged the elements for any of
claims nor

justified early

ex

pcrte discovery. Movant therefore respectfully urges this Court to vacate

Agreed Order seeking discovery, and quash the third-party subpoenas i
Service Providers, enter an Order requiring means, and

ruling on Plaintiffs
to Movant's Intemet Movant by any

Plaintiffs counsel to

cease

to destroy information akeady obtained regarding Movant's

prevent the improper disclosure of Movant's identiSring information. Dated: September 17, 2012 bmitted,

Erin Kathryn Russell

The Russell Firm 233 South Wacker Drive, 84th Floor Chicago, lL 6A606

T:312-994-2424 F:312-706-9766 Attorney ID: 48158

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on September 17,2072, she foregoing document on all counsel of record via First Class Mail, proper addresses on record with the Circuit Court of Cook
copies of the

pre-paid, to their

Erin Kathryn Russell