Only the Westlaw Citation Is Currently Available

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sue the overwhelming majority of un- Only the Westlaw citation is currently named defendants that the owner claimed available. illegally shared a pornographic film, and thus the owner's subpoena for informa- United States Court of Appeals, tion about the identity of the defendants District of Columbia Circuit. from nonparty internet service providers AF HOLDINGS, LLC, Appellee (ISPs) was unduly burdensome, where v. the applicable long-arm statute would DOES 1–1058, Appellees only extend to residents of or downloads Cox Communications, Inc., et al., Appel- within the forum, and the owner made no lants. effect to limit its discovery to such individuals. Fed.Rules Civ.Proc.Rule No. 12–7135. 26(b)(1), 28 U.S.C.A.; Fed.Rules Argued April 14, 2014. Civ.Proc.Rule 45, 28 U.S.C.A.; D.C. Of- Decided May 27, 2014. ficial Code, 2001 Ed. § 13–423(3, 4). Background: Copyright owner brought [2] Witnesses 410 16 infringement action, alleging that 1,058 unknown individuals used a peer-to-peer 410 Witnesses file-sharing application to download and 410I In General distribute the owner's copyrighted movie. 410k16 k. Subpoena Duces Tecum. The United States District Court for the Most Cited Cases District of Columbia, Beryl A. Howell, J., If a subpoena compels disclosure of 286 F.R.D. 39, upheld subpoenas against information that is not properly discover- internet service providers (ISPs) requir- able, then the burden it imposes, however ing the ISPs to identify customers associ- slight, is necessarily undue. Fed.Rules ated with certain internet protocol (IP) Civ.Proc.Rule 45, 28 U.S.C.A. addresses. The District Court certified its order for immediate appeal. [3] Federal Civil Procedure 170A 1261 Holdings: The Court of Appeals, Tatel, Circuit Judge, held that: 170A Federal Civil Procedure (1) discovery sought from the ISPs was 170AX Depositions and Discovery unduly burdensome, and 170AX(A) In General (2) joinder of the unknown individual as 170Ak1261 k. In General. Most defendants was improper. Cited Cases A district court's discretion to order Order vacated and remanded. discovery when no party has been specifically named as a defendant is cabined West Headnotes by requirements that a discovery order be

[1] Witnesses 410 16 for good cause and relate to a matter relevant to the subject matter involved in the 410 Witnesses action. Fed.Rules Civ.Proc.Rule 26(b)(1), 410I In General 28 U.S.C.A. 410k16 k. Subpoena Duces Tecum. [4] Federal Civil Procedure 170A Most Cited Cases A copyright owner did not have a 1275.5 good faith belief that it could successfully

170A Federal Civil Procedure as defendants in the owner of the film's 170AX Depositions and Discovery copyright infringement action, in the ab- 170AX(A) In General sence of any evidence that the users parti- 170Ak1275.5 k. Jurisdictional cipated in downloading and sharing the Discovery. Most Cited Cases film at the same time. Fed.Rules A plaintiff pursuing jurisdictional dis- Civ.Proc.Rule 20(a)(2), 28 U.S.C.A. covery regarding unknown defendants must have at least a good faith belief that [7] Federal Civil Procedure 170A such discovery will enable it to show that 241 the court has personal jurisdiction over 170A Federal Civil Procedure the defendants. Fed.Rules Civ.Proc.Rule 170AII Parties 26(b)(1), 28 U.S.C.A. 170AII(F) Permissive Joinder

[5] Copyrights and Intellectual Prop- 170AII(F)1 In General erty 99 79(3) 170Ak241 k. In General. Most Cited Cases 99 Copyrights and Intellectual Property Simply committing the same type of 99I Copyrights violation in the same way does not link 99I(J) Infringement defendants together for the purposes of 99I(J)2 Remedies permissive joinder of parties. Fed.Rules 99k72 Actions for Infringe- Civ.Proc.Rule 20(a)(2), 28 U.S.C.A. ment 99k79 Jurisdiction and Appeal from the United States District Venue Court for the District of Columbia (No. 99k79(3) k. Venue. 1:12–cv–00048).Benjamin J. Fox argued Most Cited Cases the cause for appellants. With him on the Under the statute governing venue in briefs were Deanne E. Maynard, Bart W. copyright actions, the propriety of venue Huffman, Hugh S. Balsam, John D. Seiv- turns on whether the defendant is subject er, Ronald G. London, Leslie G. Moylan, to personal jurisdiction. 28 U.S.C.A. § and Lisa B. Zycherman. Marc A. Hearron 1400(a). entered an appearance.

[6] Copyrights and Intellectual Prop- Corynne McSherry argued the cause for erty 99 81 amici curiae Electronic Frontier Founda- 99 Copyrights and Intellectual Property tion, et al. in support of appellants. On 99I Copyrights the brief were Mitchell L. Stoltz, Arthur 99I(J) Infringement B. Spitzer, Catherine Crump, and Paul 99I(J)2 Remedies Alan Levy. 99k72 Actions for Infringe- Paul A. Dufy argued the cause and filed ment the brief for appellee AF Holdings, LLC. 99k81 k. Parties. Most Cited Cases Users of a file-sharing service who al- Before TATEL, Circuit Judge, and SIL- legedly downloaded and shared a porno- BERMAN and SENTELLE, Senior Cir- graphic film over five months were un- cuit Judges. likely to have had any interaction with one another, and thus the users did not participate in the same series of transac- Opinion for the Court filed by Circuit tions as would permit joinder of the users Judge TATEL.

TATEL, Circuit Judge: Holdings,” acquired “several copyrights *1 Generally speaking, our federal ju- to pornographic movies,” then initiated dicial system and the procedural rules massive “John Doe” copyright infringe- that govern it work well, allowing parties ment lawsuits. Id. at *5–6. These suits to resolve their disputes with one another took advantage of judicial discovery pro- fairly and efficiently. But sometimes in- cedures in order to identify persons who dividuals seek to manipulate judicial pro- might possibly have downloaded certain cedures to serve their own improper ends. pornographic films. Such individuals, al- This case calls upon us to evaluate—and though generally able to use the Internet put a stop to—one litigant's attempt to do anonymously, are, like all Internet users, just that. linked to particular Internet Protocol (IP) addresses, a series of numbers assigned to I. each Internet service subscriber. Internet Appellee AF Holdings, a limited liab- service providers like Appellants can use ility company formed in the Caribbean is- IP addresses to identify these underlying lands of Saint Kitts and Nevis, sued and subscribers, but not necessarily the indi- then sought discovery regarding more viduals actually accessing the Internet than a thousand unknown individuals through the subscribers' connections at who it claimed had illegally shared a any given time. Confronted with these copyrighted pornographic film. This in- realities, Prenda Law's general approach terlocutory appeal arises from a district was to identify certain unknown persons court order granting AF Holdings's dis- whose IP addresses were used to down- covery requests. load pornographic films, sue them in gi- gantic multi-defendant suits that minim- A full understanding of this case re- ized filing fees, discover the identities of quires knowing some things about the the persons to whom these IP address lawyer and “law firm” that initiated it. were assigned by serving subpoenas on AF Holdings is represented by attorney the Internet service providers to which Paul A. Duffy. Until very recently, Duffy the addresses pertained, then negotiate was associated with “Prenda Law,” an or- settlements with the underlying sub- ganization that, since representing AF scribers—a “strategy [that] was highly Holdings in the district court, appears to successful because of statutory-copyright have disbanded and then reconstituted it- damages, the pornographic subject mat- self in a similar form. See Ben Jones, ter, and the high cost of litigation.” Id. at Prenda Suffers More Fee Award Blows, *6–7; see also Claire Suddath, Prenda TorrentFreak (August 9, 2013), ht- Law, the Porn Copyright Trolls, tp://torrentfreak.com/prenda–suffers–mor Bloomberg Businessweek (May 30, e–fee–award–blows–130809. 2013), ht- Prenda Law, as Judge Otis Wright II tp://www.businessweek.com/articles/201 put it in a case similar to this, was a 3–05–30/prenda-law-the-porn-copyright-t “porno-trolling collective.” Ingenuity 13 rolls (recounting Prenda Law's history LLC v. John Doe, No. 2:12–cv–8333, and litigation tactics). If an identified de- 2013 U.S. Dist. LEXIS 64564, at *3 fendant sought to actually litigate, Prenda (C.D.Cal. May 6, 2013). According to Law would simply dismiss the case. See Judge Wright, Duffy and the other prin- Ingenuity 13 LLC, 2013 U.S. Dist. LEXIS cipals of Prenda Law were “attorneys 64564, at *6–7. As Duffy acknowledged with shattered law practices” who, at oral argument, of the more than one “[s]eeking easy money, ... formed ... AF hundred cases that AF Holdings has initiated, none has proceeded to trial or resul-

ted in any judgment in its favor other Doe(s), No. 12–1445, 2013 U.S. Dist. than by default. Oral Arg. Rec. 30:09–20. LEXIS 187458, at *10–12 (D .Minn. Nevertheless, according to one article, Nov. 6, 2013), vacated by AF Holdings, Prenda Law made around $15 million in LLC v. Doe, No. 12–1445, 2014 U.S. a little less than three years. See Kashmir Dist. LEXIS 43318 (D.Minn. Mar. 27, Hill, How Porn Copyright Lawyer John 2014); see also Lightspeed Media Corp. Steel Has Made a ‘Few Million Dollars' v. Smith, No. 12–889, 2013 U.S. Dist. Pursuing (Sometimes Innocent) ‘Porn LEXIS 168615, at *16 (S.D.Ill. Nov. 27, Pirates', Forbes (Oct. 15, 2012), ht- 2013) (“The [principals of Prenda] have tp://www.forbes.com/sites/ kashmirhill/ shown a relentless willingness to lie to 2012/10/15/how-porn-copyright-lawyerjo the Court on paper and in person, despite hn- being on notice that they were facing steele-justi- sanctions in this Court, being sanctioned fies- by other courts, and being referred to his-pur- state and federal bars, the United States suit-of-sometimes-innocent-porn-pirates. Attorney in at least two districts, one state Attorney General, and the Internal *2 The present lawsuit is a quintes- Revenue Service.” (internal citations sential example of Prenda Law's modus omitted)). operandi. Represented by Prenda Law, AF Holdings brought suit in the United Moving for leave to take immediate States District Court for the District of discovery, AF Holdings then sought to Columbia against 1,058 unnamed Does serve subpoenas on the five Internet ser- who it alleged had illegally downloaded vice providers linked to the 1,058 IP ad- and shared the pornographic film Popular dresses it had identified: Cox Communic- Demand using a file-sharing service ations, Verizon, Comcast, AT & T, and known as BitTorrent. As an attachment to Bright House Networks. The district its complaint, AF Holdings listed the court granted the motion, authorizing the 1,058 IP addresses assigned to those sub- issuance of subpoenas compelling these scribers whose Internet connections had providers to turn over the names, ad- been used to share Popular Demand, dresses, telephone numbers, and email along with the specific date and time at addresses of the underlying subscribers. which it, using what it described as “sophisticated and proprietary peer- The providers refused to comply. In- to-peer network forensic software,” had voking Federal Rule of Civil Procedure observed each defendant's allegedly in- 45(d)(3)(A), which provides that a dis- fringing activity. AF Holdings also at- trict court “must quash or modify a sub- tached the purported assignment agree- poena that ... subjects a person to undue ment through which it claims to have ac- burden,” they asserted that the adminis- quired the copyright to Popular Demand. trative expense involved was necessarily Although it has no effect on our resolu- an “undue burden” because AF Holdings tion of this appeal, other courts have had failed to establish that the court since concluded that at least one of the would have personal jurisdiction over the signatures on this document was forged. defendants or that venue would lie in this See Ingenuity 13 LLC, 2013 U.S. Dist. district. Supporting these contentions, LEXIS 64564, at *8; AF Holdings LLC v. Verizon asserted that its preliminary in- Navasca, No. C–12–2396, 2013 U.S. vestigation revealed that only 20 of the Dist. LEXIS 102249, at *3–4 (N.D.Cal. 188 Verizon subscribers whose informa- July 22, 2013); AF Holdings, LLC v. tion AF Holdings sought resided in the

District of Columbia. Comcast reported II. that only one of the 400 Comcast sub- [1] We begin with personal jurisdic- scribers AF Holdings identified appeared tion, along with the closely related ques- to live in the District. And Cox, AT & T, tion of venue. Defending the district and Bright House each stated that they court's decision, AF Holdings contends had no subscribers at all in the District of that any consideration of such issues is Columbia; indeed, they do not even offer premature where, as here, the as- service here. The providers also argued yet-unknown defendants have yet to raise that any burden was necessarily undue these defenses. It relies primarily on An- because AF Holdings had failed to ger v. Revco Drug Co., 791 F.2d 956 provide any reason to think that joinder (D.C.Cir.1986), in which we reiterated of these 1,058 defendants in one action the general rule that “personal jurisdic- was proper. tion is a matter to be raised by motion or responsive pleading.” Id. at 958. *3 The district court rejected these ar- guments, holding that “considerations of In Anger, however, we faced a situ- personal jurisdiction and joinder are pre- ation very different from the one we con- mature when discovery is sought before front here. There, we considered a district the plaintiff has named a defendant and court's sua sponte dismissal of a com- the discovery is targeted to identify un- plaint for lack of personal jurisdiction. known individuals associated with the IP We held that such a dismissal is improper addresses.” But acknowledging that sev- because “before the complaint has been eral other district courts had reached con- served and a response received, the court trary conclusions in similar situations, is not positioned to determine conclus- and recognizing that a substantial ground ively whether personal jurisdiction ex- for difference of opinion existed, the dis- ists.” Id. (emphasis added). In other trict court certified its order for immedi- words, to bring an action a plaintiff has ate appeal. See 28 U.S.C. § 1292(b). no obligation to establish personal jurisdiction until the defendant has raised that The providers now reiterate the argu- defense. See id.; accord, e.g., Caribbean ments they made in the district Broadcasting System, Ltd. v. Cable & court—that the subpoenas are unduly Wireless PLC, 148 F.3d 1080, 1090 burdensome because venue is improper, (D.C.Cir.1998) (CBS ) (“CBS's obligation personal jurisdiction over these Doe de- to make some allegations relating to per- fendants is lacking, and the defendants sonal jurisdiction arose ... only after CCC could not properly be joined together in had filed its motion to dismiss....”). one action. Our review is for abuse of discretion. See Recording Industry Ass'n [2][3] Different principles apply of America, Inc. v. Verizon Internet Ser- where, as here, a plaintiff seeks not just vices, 351 F.3d 1229, 1233 to file a complaint, but instead attempts (D.C.Cir.2003). As a “district court by to use the machinery of the courts to definition abuses its discretion when it force a party to comply with its discovery makes an error of law,” the demands. Federal Rules of Civil Proced- “abuse-of-discretion standard includes re- ure 45 and 26 set forth the relevant con- view to determine that the discretion was siderations. Rule 45(d)(3)(A) requires a not guided by erroneous legal conclu- district court to “quash or modify a sub- sions.” Koon v. United States, 518 U.S. poena that ... subjects a person to undue 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 burden.” If a subpoena compels disclos- (1996). ure of information that is not properly

discoverable, then the burden it imposes, pose of a discovery request is to gather however slight, is necessarily undue: why information for use in proceedings other require a party to produce information the than the pending suit, discovery properly requesting party has no right to obtain? is denied.” Id. at 352 n. 17. The question then becomes what sort of information is properly discoverable. [4] Applying these same principles, Where, again as here, no party has yet we conclude that, as is the case when a been specifically named as a defendant, plaintiff seeks jurisdictional discovery the only potential avenue for discovery is with respect to named defendants, a Rule 26(d)(1), which provides for discov- plaintiff pursuing discovery of the sort ery “by court order.” A district court's AF Holdings seeks regarding unknown discretion to order discovery in these cir- defendants must “have at least a good cumstances is, in turn, cabined by Rule faith belief that such discovery will en- 26(b)(1)'s general requirements that a dis- able it to show that the court has personal covery order be “[f]or good cause” and jurisdiction over the defendant [s].” CBS, relate to a “matter relevant to the subject 148 F.3d at 1090. Absent such a matter involved in the action.” See Food threshold showing, there is little reason to Lion v. United Food & Commercial believe that the information sought will Workers Union, 103 F.3d 1007, 1012 be “relevant to the subject matter in- (D.C.Cir.1997) (“[N]o one would suggest volved in the action,” as Rule 26(b)(1) re- that discovery should be allowed of in- quires. The identity of prospective de- formation that has no conceivable bearing fendants who cannot properly be sued in on the case.” (internal quotation marks this district can be of little use in a law- omitted)). suit brought in this district. And again, as the Court stated in Oppenheimer, “when *4 The limits of the federal discovery the purpose of a discovery request is to procedures are illustrated by Oppen- gather information for use in proceedings heimer Fund, Inc. v. Sanders, 437 U.S. other than the pending suit, discovery 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 properly is denied.” 437 U.S. at 352 n. 17 (1978), in which the Supreme Court held (emphasis added). Thus, in denying dis- that the representative plaintiffs in a class covery where there is no such good faith action suit could not use discovery tools belief, a court would not be making an to secure from the defendant the names of impermissible “conclusive[ ]” determina- members of the plaintiff class. Id. at 353. tion on the merits of the personal juris- The Court concluded that because the diction question. Anger, 791 F.2d at 958. plaintiffs did “not seek this information Instead, the court would be satisfying its for any bearing that it might have on is- Rule 26 obligation to ensure that the sues in the case,” but instead simply in scope of discovery is limited to issues ac- order to provide the class members with tually relevant to the litigation. notice of the litigation, they lacked a proper discovery purpose. Id. at 352. It Here, we think it quite obvious that inferred this improper motive in part AF Holdings could not possibly have had from the plaintiffs' conduct in the district a good faith belief that it could success- court, where they had offered to redefine fully sue the overwhelming majority of the class to encompass only those class the 1,058 John Doe defendants in this members to whom they could already district. AF Holdings concedes that under send notice. See id. at 353. In a footnote, the District of Columbia's long-arm stat- the Court emphasized—in language espe- ute, which along with the Due Process cially relevant here—that “when the pur- Clause governs this question, see GTE

New Media Services Inc. v. Bellsouth some basis for determining whether a Corp., 199 F.3d 1343, 1347 particular subscriber might live in the (D.C.Cir.2000), the only conceivable way District of Columbia rather than, say, that personal jurisdiction might properly Oregon, see Nu Image, 799 F.Supp.2d at be exercised over these Doe defendants is 41 (“while these geolocation services are if they are residents of the District of not 100% accurate, these services can Columbia or at least downloaded the place a user no farther away than a city copyrighted work in the District. See that borders the user's actual location”). D.C.Code § 13–423(3), (4) (providing for Given AF Holdings's failure to take even personal jurisdiction over a person these minimal steps, we cannot escape “causing tortious injury in the District of the conclusion that it sought the vast ma- Columbia”); Nu Image, Inc. v. Does jority of this information for reasons un- 1–23,322, 799 F.Supp.2d 34, 38–40 related to its pursuit of this particular (D.D.C.2011). But AF Holdings has lawsuit. See Oppenheimer, 437 U.S. at made absolutely no effort to limit its suit 352 n. 17 (“In deciding whether a request or its discovery efforts to those defend- comes within the discovery rules, a court ants who might live or have downloaded is not required to blind itself to the pur- Popular Demand in the District of pose for which a party seeks informa- Columbia. Instead, it sought to subpoena tion.”). Indeed, Duffy essentially admit- Internet service providers that provide no ted as much at oral argument, stating that service at all in the District. As Duffy re- if, as appears to be the case, 399 of Com- luctantly conceded at oral argument, AF cast's 400 identified subscribers were Holdings could have no legitimate reason found to live outside the District, “the for objecting to the court's quashing the 399 likely wouldn't be named as defend- subpoenas directed at these providers. ants in this case.” Oral Arg. Rec. Oral Arg. Rec. 33:00–04. Even for those 34:32–36. providers that do serve the District of Columbia, AF Holdings's discovery de- *5 [5] The foregoing analysis applies mands were overbroad because it made equally to venue. Under the relevant stat- no attempt to limit its inquiry to those ute, 28 U.S.C. § 1400(a), the propriety of subscribers who might actually be located venue turns on whether the defendant is in the District. It could have easily done subject to personal jurisdiction. See Mil- so using what are known as geolocation waukee Concrete Studios, Ltd. v. Fjeld services, which enable anyone to estimate Manufacturing Co., 8 F.3d 441, 445 (7th the location of Internet users based on Cir.1993) (“ section 1400(a)'s ‘may be their IP addresses. Such services cost found’ clause has been interpreted to very little or are even free. See Amicus mean that a defendant is amenable to per- Br. of Electronic Frontier Foundation, et sonal jurisdiction in a particular forum”). al. 24 (observing that “Neustar IP Intelli- AF Holdings's failure to establish any gence ... provides on-demand geolocation basis for thinking the latter exists means services for $8 per 1,000 addresses); see that it has likewise failed to set forth any also http:// freegeoip.net (last visited May good faith basis for the former. 22, 2014) (providing this service for AF Holdings's sole counterargument free). While perhaps not precise enough is that personal jurisdiction and venue to identify an Internet user's street ad- may be waived and that these defendants, dress, these services “can be accurate,” as once identified, might do so. See Anger, Duffy acknowledged at oral argument, 791 F.2d at 958. Such a speculative pos- Oral Arg. Rec. 23:58–24:01–certainly sibility is, however, plainly insufficient to sufficiently accurate to provide at least

satisfy AF Holdings's obligation to single action, especially when many of demonstrate a good faith belief that it those addresses fall outside of the court's will actually be able to successfully sue jurisdiction.” Pacific Century Interna- the more than a thousand non-District tional, Ltd. v. Does 1–37, 282 F.R.D. residents about whom it seeks discovery. 189, 196 (N.D.Ill.2012). In seeking such As then-District Judge Robert Wilkins information, AF Holdings clearly abused concluded in rejecting the same argu- the discovery process. ment, “it defies common sense for the Court to assume that all of the nonresid- III. ent John Does will waive viable lack of *6 [6] We turn to the question of join- venue and lack of personal jurisdiction der, which provides a separate and inde- defenses—indeed, those defenses have pendent ground for reversal. As relevant been routinely raised in other similar file here, Federal Rule of Civil Procedure sharing lawsuits.” Nu Image, 799 20(a)(2) sets forth that multiple defend- F.Supp.2d at 42; see also, e.g., AF Hold- ants may be joined in one action if the ings LLC v. Does 1–96, No. C–11–03335, plaintiff seeks relief “with respect to or 2011 U.S. Dist. LEXIS 134655, at *9 arising out of the same transaction, occur- (N.D.Cal.2011) (providing for discovery rence, or series of transactions or occur- only after holding that plaintiff had rences” and “any question of law or fact “made a prima facie showing that its common to all defendants will arise in the Complaint would withstand a motion to action.” In a multi-Doe copyright in- dismiss for lack of personal jurisdic- fringement lawsuit such as this, at least tion”); Millenium TGA v. Doe, No. one issue of law or fact will generally be 10–C–5603, 2011 U.S. Dist. LEXIS common to all defendants—here, that is- 110135, at *8 (N.D.Ill.2011) (refusing to sue might be whether AF Holdings has a allow discovery where there was no valid copyright in Popular Demand. But plausible basis for personal jurisdiction); whether all of these Doe defendants cf. McLaughlin v. Bradlee, 803 F.2d could possibly have been a part of the 1197, 1205 (D.C.Cir.1986) (upholding same “transaction, occurrence, or series award of sanctions where defendants' is- of transactions or occurrences” so as to sue preclusion defenses were sufficiently support joinder is a more difficult ques- obvious to render complaint frivolous). tion. If a plaintiff such as AF Holdings can claim no good faith belief that all the In sum, AF Holdings's refusal to cab- Doe defendants are linked in this way, in its suit and corresponding discovery then the logic for denying or at least lim- requests to individuals whom it has some iting discovery is the same as that delin- realistic chance of successfully suing in eated above with respect to personal jur- this district demonstrates that it has not isdiction and venue: information about “sought the information because of its individuals who could not be joined in an relevance to the issues” that might actu- action cannot possibly be “relevant to the ally be litigated here. Oppenheimer, 437 subject matter involved in the action.” U.S. at 353. Although AF Holdings might Fed.R.Civ.P. 26(b)(1). possibly seek discovery regarding individual defendants in the judicial districts According to AF Holdings, joinder of in which they are likely located, what it the 1,058 John Does it named in the un- certainly “may not do ... is improperly derlying suit was at least presumptively use court processes by attempting to gain proper because, given the properties of information about hundreds of IP ad- the BitTorrent file-sharing protocol the dresses located all over the country in a defendants allegedly used to download

Popular Demand, each defendant was ne- bers of the swarm. cessarily part of the same transaction or series of transactions. Some background *7 [7] But AF Holdings has provided on the nature of BitTorrent is necessary no reason to think that the Doe defend- to understand this argument. As Judge ants it named in this lawsuit were ever Harold Baer, considering a case very participating in the same swarm at the much like this one, explained: same time. Instead, it has simply set forth snapshots of a precise moment in which Simplified, BitTorrent and similar pro- each of these 1,058 Does allegedly shared tocols break a large file into pieces the copyrighted work—snapshots that while tagging each piece with a com- span a period of nearly five months. Two mon identifier. Where in the normal individuals who downloaded the same course a user would download a file file five months apart are exceedingly un- from a single source, and download it likely to have had any interaction with sequentially from beginning to end, one another whatsoever. Their only rela- with the BitTorrent peer-to-peer pro- tionship is that they used the same protocol, users join forces to simultan- tocol to access the same work. To para- eously download and upload pieces of phrase an analogy offered by amicus the file from and to each other. This re- counsel at oral argument, two BitTorrent duces the bottleneck of Internet traffic users who download the same file months that normally occurs at the server where apart are like two individuals who play at the entire file is located and allows for the same blackjack table at different faster download speeds for users. This times. They may have won the same interconnected web of information amount of money, employed the same flowing between users, or peers, is strategy, and perhaps even played with called a swarm. the same dealer, but they have still en- gaged in entirely separate transactions. Media Products, Inc. v. Does 1–26, And “[s]imply committing the same type No. 12 Civ. 3719, 2012 U.S. Dist. LEXIS of violation in the same way does not link 125366, at *4 (S.D.N.Y. Sept. 3, 2012). defendants together for the purposes of AF Holdings argues that because BitTor- joinder.” Hard Drive Productions, Inc. v. rent users who download the same file Does 1–30, No. 2:11cv345, 2011 U.S. are part of the same “swarm,” they have Dist. LEXIS 119333, at *7 all participated in the same series of (E.D.Va.2011) (internal quotation marks transactions. See, e.g., Digital Sin, Inc. v. omitted). We therefore agree with those Does 1–176, 279 F.R.D. 239, 244 district courts that have concluded that (S.D.N.Y.2012) (accepting a version of the mere fact that two defendants ac- this argument). cessed the same file through BitTorrent provides an insufficient basis for joinder. We are unconvinced. For purposes of See Malibu Media LLC, 286 F.R.D. 113, this case, we may assume that two indi- 116 (D.D.C.2012) (“ ‘Nothing in the viduals who participate in the same complaint negates the inference that the swarm at the same time are part of the downloads by the various [Doe] defend- same series of transactions within the ants were discrete and separate acts that meaning of Rule 20(a)(2). In that circum- took place at different times.’ ”) (quoting stance, the individuals might well be act- Digital Sins, Inc. v. Does 1–245, No. 11 ively sharing a file with one another, up- Civ. 8170, 2012 U.S. Dist. LEXIS 69286, loading and downloading pieces of the at *6 (S.D.N.Y.2012)); accord, e.g., copyrighted work from the other mem- Patrick Collins, Inc. v. Does 1–44, No.

8:12–cv–00020, 2012 U.S. Dist. LEXIS 47686, at *18 (D.Md. Apr. 4, 2012) (“A majority of courts ... have specifically held that the properties of BitTorrent are insufficient to support joinder.”); In re BitTorrent Adult Film Copyright In- fringement Cases, 296 F.R.D. 80, 90–91 (E.D.N.Y.2012). As with personal jurisdiction and venue, AF Holdings could have brought a suit for which it had some reasonable basis for believing that the requirements for joinder would be satisfied. But given its decision to instead name and seek discovery regarding a vast number of defendants who downloaded the film weeks and even months apart—defendants who could not possibly remain joined in this litigation—one can easily infer that its purpose was to attain information that was not, and could not be, relevant to this particular suit. Such use of the discovery procedures is prohibited. IV. Accordingly, we vacate the district court's order and remand for further proceedings consistent with this opinion. We leave it to the district court to determine what sanctions, if any, are warranted for AF Holdings's use of a possible forgery in support of its claim. *8 So ordered. C.A.D.C.,2014. AF Holdings, LLC v. Does 1-1058 --- F.3d ----, 2014 WL 2178839 (C.A.D.C.) END OF DOCUMENT