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Practice Tip: Motions to Quash After Judge Gertner's November 24, 2008, Decision in London Sire Records v. Does 1-4

By Ty Rogers and Ray Beckerman

As you know, on November 24th, in one of the "John Doe" cases targeting Boston University, consolidated under the heading London-Sire Records v. Does 1-4, after the university advised the Court that it could not identify John Does #8, 9, and 14 to a reasonable degree of technical certainty, Judge Nancy Gertner deemed the letter a motion to quash, and granted it, quashing the subpoena as to those defendants:

The Court treats Boston University's 9/23/08 Letter as a Motion to Quash and GRANTS the motion with respect to Doe Defendants # 8, 9, and 14. The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty. As a result, the Court finds that compliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery. Accordingly, under the test laid out in its 3/31/08 Order, the Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14.

(emphasis supplied) We have been saying this for years. It is refreshing to see it finally recognized in a decision. Interestingly, it occurred in an undefended case, where no "John Doe" appeared. The Court, however, deemed the University's letter explaining the identification problem a motion to quash, and granted it.

The reason we believe this little, 4-sentence, decision is so important is that if the principle it enunciates is followed consistently by Judge Gertner and by other judges, very few, if any, RIAA subpoenas will withstand a motion to quash going forward. E.g., if this principle had been followed in Arista Records v. Does 1-17 targeting University of Oregon students, or in LaFace Records v. Does 1-14 targeting University of Arizona students, in both of which the university's plea fell on deaf ears, the respective subpoenas would have been quashed as to all, or at least most, of the students.

Accordingly, I urge every practitioner who is consulted by a John Doe defendant, and is contemplating a motion to vacate the ex parte discovery order and quash the subpoena issued under it -- whether through a college or university or through a commercial internet service provider -- to give careful consideration to the November 24, 2008, decision in London-Sire Records v. Does 1-4.

And I urge every college and university counsel, and internet service providers' counsel, to consult with your technical staff and recognize that Judge Gertner's decision implies a responsibility on your part, on behalf of your students and subscribers, to advise the respective courts from which the subpoenas have been issued, before making disclosure to the RIAA, as to which, if any, "alleged infringers" can be identified "with a reasonable degree of technical certainty", as Boston University did, so that the Court can pass upon the question .

Order (a) treating University's letter as motion to quash, and (b) quashing subpoena as to John Does #8, 9, and 14

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Full post as published by Recording Industry vs The People on November 25, 2008 (boomark / email).