Troutman Sanders LLP: Another "Swarm" Found Insufficient for Joinder in the Eastern District of Virginia

Troutman Sanders LLP: Another "Swarm" Found Insufficient for Joinder in the Eastern District of Virginia

By Megan Rahman

Following on the heels of Judge Gibney's decisions in Raw Films, Ltd. v. John Does 1-32, Civil Action No. 3:11cv532 (October 5, 2011, amended on October 13, 2011) [enhanced version available to lexis.com subscribers], discussed here, Magistrate Judge Tommy E. Miller, in Hard Drive Productions, Inc. v. John Does 1-30, 2:11cv345 (October 17, 2011), found here, held that the mere allegations that Doe defendants have used the same peer-to-peer network - BitTorrent - to copy and reproduce video is insufficient to meet the standards of joinder. 

Also of note, Magistrate Judge Miller, recognizing that there were three other nearly identical cases currently pending in the District involving the alleged use of BitTorrent protocols to engage in copyright infringement, observed that in all the pending cases, including the one at bar, the Doe Defendants have indicated that plaintiffs have contacted them directly, demanding money to end the litigation.  Then, when any Doe Defendant files a motion to sever, plaintiff quickly and voluntarily dismisses that Doe Defendant as a party in the matter to avoid the issue being presented to the court for resolution.  In all of these cases, however, the Court has also allowed expedited discovery to allow plaintiffs to issue Rule 45 subpoenas to the Doe Defendants.  As a result of this behavior, the Court ordered that plaintiff show cause as to why all the materials gained by the Rule 45 subpoenas should not be suppressed and the severed Doe Defendants fully dismissed.

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