Case: 1:16-mc-00024-MRB-KLL Doc #: 1 Filed: 09/15/16 Page: 1 of 2 PAGEID #: 1
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION In re: DMCA Subpoena to GoDaddy.com, LLC.
Case No. 1:16-mc-00024 Brenda Hamilton’s Request to the Clerk for Issuance of Subpoena to GoDaddy.com, LLC, Pursuant to 17 U.S.C. 512(h) to Identify Alleged Infringer
Petitioner, Brenda Hamilton (“Ms. Hamilton”), through her undersigned counsel of record, requests that the Clerk of this Court issue a subpoena to GoDaddy.com, LLC (“GoDaddy”) to identify an alleged copyright infringer, pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C.
512(h) (the “DMCA Subpoena”). A proposed DMCA
Subpoena is attached. Ms. Hamilton has satisfied the requirements of the issuance of a subpoena pursuant to 17 U.S.C.
512(h) by: (1) Filing a copy of the notification sent to GoDaddy.com, pursuant to 17 U.S.C. 512(c)(3)(A), attached to the Declaration of Colleen Devanney as Exhibit (2) Filing the proposed DMCA Subpoena; and (3) Filing a sworn declaration confirming that the purpose of the DMCA Subpoena is to obtain the identity of the alleged infringer and that the information obtained will only be used for the purpose of protecting Ms. Hamilton s rights under 17 U.S.C. seq.
101, et
Case: 1:16-mc-00024-MRB-KLL Doc #: 1 Filed: 09/15/16 Page: 2 of 2 PAGEID #: 2
As Ms. Hamilton has complied with the statutory requirements, Ms. Hamilton respectfully requests that the Clerk issue the proposed DMCA subpoena, pursuant to 17 U.S.C. 512(h)(4). Dated: September 15, 2016
Respectfully submitted. /s/ Colleen M. Devannev Colleen M. Devanney (0083795) Adam C. Sherman (0076850) Vorys, Sater, Seymour and Pease LLP 301 East Fourth Street, Suite 3500 Cincinnati, Ohio 45202 Telephone: (513) 842-8123 Facsimile: (513) 852-7828 cmdevanney@vorys.com Counselfor Petitioner Brenda Hamilton
Case: 1:16-mc-00024-MRB-KLL Doc #: 1-1 Filed: 09/15/16 Page: 1 of 4 PAGEID #: 3 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action
Un it e d St a t e s Dis t r ic t Co u r t for the Southern District of Ohio
re: DMCA Subpoena to GoDaddy.com, LLC Plaintiff V.
Defendant
) ) ) ) ) )
Civil Action No. 1:16-mc-00024
SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION GoDaddy.com, LLC c/o Compliance Department 14455 North Hayden Road, Suite 219, Scottsdaie, AZ 85260
To:
(Name
person to whom this subpoena is directed)
Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: See attached Exhibit A Place:
Fourth Street, Great American Tower, Ste. 3500 Cincinnati, OH 45202 (attn: Coiieen Devanney); or via emaii: cmdevanney(gvorys.corn_____________
Date and Time: 10/06/2016 9:00 am
â–Ą Inspection Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Date and Time:
Place:
The following provisions of Fed. R. Civ. P. 45 are attached Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date:
09/15/2016 CLERK OF COURT Signature
Clerk or Deputy Clerk
OR s signature
The name, address, e-mail address, and telephone number of the attorney representing of ______________ who issues or requests this subpoena, are: Brenda Hamilton Colleen Devanney, 301 Fourth St., Tower, Ste. 3500, Cin., 45202; cmdevanney@vorys.com 513-842-8123 Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).
Case: 1:16-mc-00024-MRB-KLL Doc #: 1-1 Filed: 09/15/16 Page: 2 of 4 PAGEID #: 4 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection ofPremises in a Civil Action (Page 2)
Civil Action No. 1:16-mc-00024 PROOF OF SERVICE (This section should not befiled with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for
of
if
on â–Ą I served the subpoena by delivering a copy to the named person as follows: or
on I returned the subpoena unexecuted because:
Unless the subpoena was issued on behalf ofthe United States, or one of its officers or agents, I have also tendered to the witness the fees for one day attendance, and the mileage allowed by law, in the amount of
My fees are
for travel and
for services, for a total of
I declare under penalty of perjury that this information is true. Date: Server's signature
Printed name and title
Server's address
Additional information regarding attempted service, etc.:
0.00
Case: 1:16-mc-00024-MRB-KLL Doc #: 1-1 Filed: 09/15/16 Page: 3 of 4 PAGEID #: 5 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection ofPremises in a Civil Action(Page 3)
Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (2) For Other Discovery. A subpoena may command: (A) production documents, electronically stored information, or tangible things at a place within 100 miles where the person resides, is employed, or regularly transacts business in person; and (B) inspection premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—^which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection premises, need not appear in person at the place of woduction or inspection unless also commanded to appear for a deposition, tearing, or trial. (B) Objections. person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure privileged or other protected matter, no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or
(ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead quashing or modifying a subpoena, order appearance or production under specified conditions the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course ofbusiness or must organize and label them to correspond to the categories in the demand. (B) Form Producing Electronically StoredInformation Not Specified. a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically StoredInformation Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically StoredInformation. The person responding need not provide discovery electronically stored information from sources that the person identifies as not reasonably accessible because undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because undue burden or cost. that showing is made, the court may nonetheless order discovery from such sources the requesting party shows good cause, considering the limitations ofRule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withliolding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. information produced in response to a subpoena is subject to a claim privilege or protection as trial-preparation material, the person making the claim may notify any party that received the information the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.
For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
Case: 1:16-mc-00024-MRB-KLL Doc #: 1-1 Filed: 09/15/16 Page: 4 of 4 PAGEID #: 6
EXHIBIT A INSTRUCTIONS FOR SUBPOENA PRODUCTION; The terms “You” or Your” means GoDaddy.com, LLC, and all persons or entities acting or purporting to act under its eontrol or on its behalf. Documents” or “doeument” shall have the meaning set forth in the Federal Rules of Civil Procedure and includes, without limitation, each and every writing, drawing, graph. ehart, photograph, sound recording, image, or other data or data compilation stored in any medium from which information can be obtained either directly or after translation into a reasonably usable form that is in Your possession, custody, or control. Any use of the singular shall be deemed to refer also to the plural, and viee versa. Any use of the word “and” shall be deemed to refer also to the word “or,” and viee versa. DEFINITIONS; As used in this subpoena, “identifying information” includes any and all information relating to the identity of the person or entity operating the website found at vmw.brendahamilton.info
which is hosted by GoDaddy.eom, LLC
ineluding, but not limited
to, the name of the individual or entity and mailing and/or physical addresses, phone numbers. email addresses, and fax numbers associated with the individual or entity. As used in this subpoena, “identifying information” also includes Internet Protocol Address information recorded by You associated with vyww.brendahamilton.info ITEMS TO BE PRODUCED Please produce all doeuments containing identifying information relating to the person or entity who/that operates the website located at www.brendahamilton.info and pays GoDaddy.eom, LLC for hosting services associated with the domain brendahamilton.info.
Case: 1:16-mc-00024-MRB-KLL Doc #: 1-2 Filed: 09/15/16 Page: 1 of 2 PAGEID #: 7
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION In re: DMCA Subpoena to GoDaddy.com,
LLC D EC LAR ATIO N D EVAN N EY
C O LLEEN M .
I, Colleen M. Devanney, Esq., declare, under penalty of perjury, as follows: I am over the age of
and am competent to testily to the matters contained here.
I have personal knowledge of the matters contained in this Declaration. I am an attorney with the law firm of Vorys, Sater, Seymour and Pease LLP. I represent Brenda Hamilton (“Ms. Hamilton”), who owns the copyright of her professional headshot
that
IS
located
on
her
law
firm’
website
at
https://www.securitieslawverl01.com/brenda-hamilton/ Ms. Hamilton srecently discovered the website www.brendahamilton.info This website, which is designed to disparage Ms. Hamilton, includes Ms. Hamilton’s headshot on one of its pages rwww.brendahamilton.info/about-us.html)
a clear infringement of Ms. Hamilton’
copyright. The
domain
brendahamilton.info
is
hosted
by
GoDaddy.com,
LLC
(“GoDaddy”). Ms. Hamilton seeks to subpoena GoDaddy for documents containing identifying information relating to the identity of the person or entity who/that operates the website located
Case: 1:16-mc-00024-MRB-KLL Doc #: 1-2 Filed: 09/15/16 Page: 2 of 2 PAGEID #: 8
at the domain brendahamilton.info and pays GoDaddy for hosting services associated with the domain. 6.
The objective of subpoenaing GoDaddy is to obtain the identity of the alleged
infringer, and such information that Ms. Hamilton obtains from GoDaddy will only be used for the purpose ofprotecting Ms. Hamilton’s rights under 17 U.S. Code Attached as Exhibit
101, et seq.
to this Declaration is a true and correct copy of the
notification sent to GoDaddy, pursuant to 17 U.S.C.
512(C)(3)(A).
DATED: September 15, 2016
/s/ Colleen M. Devannev Colleen M. Devanney, Esq.
2
Case: 1:16-mc-00024-MRB-KLL Doc #: 1-3 Filed: 09/15/16 Page: 1 of 1 PAGEID #: 9 Cohen, Jordan S. Cohen, Jordan Thursday, September 2016 12:35 PM 'copyrightclaims@godaddy.com' Copyright Claim
From:
Sent: To: Subject:
To Whom It May Concern: This law firm represents Brenda Hamilton ("Ms. Hamilton" or "my client"). Ms. Hamilton owns the copyright to the professional headshot of her that located on her professional bio on the website www.securitieslawverl01.com (specifically https://www.securitieslawverl01.eom/wp-content/uploads/2014/02/Graphic-10.png The webpage www.brendahamilton.info/about-us.html found on GoDaddy-owned domain (brendahamilton.info) contains the identical photo of Ms. Hamilton and therefore, infringing on my client's copyright. Both Ms. Hamilton and her legal counsel have good faith belief that the use of the copyrighted material on the website www.brendahamilton.info is not authorized by Ms. Hamilton, its agent, or the law. Further, declare that the information in this notification accurate, and under penalty of perjury, that am authorized to act on behalf of Ms. Hamilton, who owns the exclusive right to her professional website. Please accept this notice pursuant to the Digital Millennium Copyright Act, and remove the infringing website immediately. Sincerely, /s/Jordan
Cohen,
Jordan S. Cohen Attorney at Law
Vorys, Sater, Seymour and Pease LLP East Fourth Street Suite 3500, Great American Tower Cincinnati, Ohio 45202
Direct: 513.723.4073 Fax: 513.852.7806 Email: iscohen@vorvs.com
www.vorys.com
Exhibit 1