Subpoena to university in P2P case must give time to notify parents

UMG Recordings, Inc. v. Doe, No. 08-3999, 2008 WL 4104207 (N.D.Cal. September 4, 2008)

Plaintiff record companies, using Media Sentry, found the IP address of a John Doe file-sharing defendant, and filed suit against Doe in federal court for copyright infringement. As in any case where a defendant is known only by his or her IP address, the record companies needed some discovery to ascertain the name and physical address matching that IP address. But the federal rules of procedure say that without a court order, a party cannot seek discovery until the parties have conferred pursuant to Fed. R. Civ. P. 26(f).

So the record companies sought the court order allowing them to issue a subpoena to Doe’s Internet service provider prior to the 26(f) conference. The court granted the order, but with a caveat.

The evidence showed that Doe was a student at the University of California, Santa Cruz. Under the Family Educational Rights and Privacy Act at 20 U.S.C. ยง 1232g, a college generally cannot disclose “any personally identifiable information in education records other than directory information.” There’s an exception to that rule when the college is answering a lawfully issued subpoena, provided that “parents and the students are notified of all such … subpoenas in advance of the compliance therewith by the educational institution or agency.”

The court granted the record companies’ motion for leave to serve the subpoena prior to the Rule 26(f) conference, but required that the subpoena’s return date “be reasonably calculated to permit the University to notify John Doe and John Doe’s parents if it chooses prior to responding to the subpoena.”