2. Defending Subpoena for Identifying Information


A subpoena is a formal request for records.  A lawyer sends a subpoena to a person or company which has records he/she wants, which is why the subpoenas in these cases are sent to the company that provides people with internet connections (Internet Service Providers, or "ISPs").  It is because they are the ones with the personally identifying information for its subscribers, which the plaintiffs need in order to figure out whose name to replace the words 'John Doe' in their lawsuit.

Defending Against the Subpoena


If you want to fight the case, one option is to file a motion to challenge the subpoena, called a "motion to quash."  A motion to quash is a request that the court responsible for the subpoena order the recipient of that subpoena not to honor it.  In copyright cases, if you file a such a motion, and that motion is allowed, the case is over for the plaintiffs, and they cannot proceed.  If it is denied, then the ISP will have to comply with the subpoena, and the personal identifying information for the subcriber will be turned over.

If you decide that your best option is to ask the court to “quash” the subpoena, you have two choices.

First, you can file the motion yourself.  You would essentially argue that you have a reasonable expectation of privacy in your identifying information and a qualified right to speak and associate anonymously online (see here).  You would also argue (where appropriate) that the case in which the subpoena has been issued is abusive, filed without a good faith belief in the court's jurisdiction or venue, that all the John Does should not be joined in the same lawsuit, and any other procedural infirmities you can identify with the subpoena or the way it was served.  The problems with this are (a) it will be difficult to do without legal training, and (b) you must include your contact information in the motion, which is exactly the information the plaintiffs are looking for anyway (there are ways of doing this, but they are bureaucratic and complicated)

Your second option is to hire an attorney to create, file and argue those motions.  The benefit of this option is that an attorney will address the particular issues in your case, and may include issues not addressed in the motions linked above.  The problem with this is that it represents an up-front cost with an uncertain outcome.

Liklihood of Success

The chances of succeedingon a motion to quash are slim.  In the early days of copyright trolling in Massachusetts, there were some promising decisions (see here and here).  Some of those opinions took issue with the process as a whole. Others took issue with the practice of joining hundreds of defendants together in one lawsuit at the same time. One outlier opinion denied a motion for early discovery stating that that the Plaintiffs' assertions "smack of bad faith" and its conduct "suggests an improper effort to engage in judge shopping and evidences a disregard for the Court’s limited public resources."

However, as time has gone on, the courts have grown accustomed to these cases, and have settled on a policy of permitting early discovery.  The only way that will change is if there are people who challenge the process, knowing that their odds are not good. That's the only way the law has ever changed.  But martyrdom is an expensive and unenviable proposition, and hard to justify strategically.  If you have a particularly strong case, and are willing to take the hit for the larger good, definitely discuss that with an attorney first.


If the motion to quash the subpoena is granted, the information is never turned over, and the case against that person is finished.  If it is not, the expense, in terms of money and time, invested in filing that motion is lost without any benefit.

To be clear, there are no good options, but if you decide that your best option is filing a motion to quash, you are most likely to be successful by hiring an attorney to file draft, file and argue the motion on your behalf.

1. Copyright Lawsuit Overview

3. Post-Subpoena Stage