Strike 3 Holdings, LLC v. Doe

Filing 11

ORDER. For the reasons stated in the attached order, the 9 motion for leave to serve a third-party subpoena is GRANTED. Signed by Judge Michael P. Shea on 10/13/2017. (Mac Dougall, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

STRIKE THREE HOLDINGS, LLC,
Plaintiff,
v.

No. 3:17-cv-1679 (MPS)

JOHN DOE subscriber assigned IP address
173.3.23.240,
Defendant.

ORDER GRANTING MOTION FOR LEAVE TO SERVE
THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE
Plaintiff Strike 3 Holdings, LLC alleges that defendant John Doe, identified only by his IP
address, committed copyright infringement by distributing plaintiff’s adult films using BitTorrent,
a peer-to-peer file distribution network. (ECF No. 1.) Plaintiff moves pursuant to Fed R. Civ. P.
26(d)(1) for leave to serve a third-party subpoena on defendant’s internet service provider (“ISP”)
for the limited purpose of discovering defendant’s identity; only with defendant’s identity will
plaintiff be able to serve defendant with process and proceed with the case. (ECF No. 9.)
Because the plaintiff has established that there is good cause, the Motion for Leave to File
a Third Party Subpoena is GRANTED. The plaintiff has shown: (1) a prima facie case of copyright
infringement by “alleging unlawful downloading, copying, and distribution of this work by
specifying the type of technology used, the IP address from which the file was accessed and shared,
and the date and time of infringement,” Malibu Media, LLC v. Doe, No. 14-CV-4808 (JS)(SIL),
2016 WL 4574677, at *6 (E.D.N.Y. Sept. 1, 2016), (2) that the subpoena is limited and only seeks
“concrete and narrow information: the name and address of the subscriber associated with [the
defendant’s] IP address[,]” John Wiley & Sons, Inc. v. Doe, 284 F.R.D. 185, 190 (S.D.N.Y. 2012);

and (3) that, because the internet service provider is the only entity that can identify a subscriber’s
identity with an IP address, there is “good cause to allow for [the] early discovery” of subpoenaing
Optimum. Next Phase Distribution, Inc. v. John Does, 1-27, 284 F.R.D. 165, 171–72 (S.D.N.Y.
2012).
Plaintiff acknowledges the concerns raised by many courts around the nation that, given
the nature of the films allegedly distributed by defendants, defendants may feel coerced to settle
these suits merely to prevent public disclosure of defendants’ identifying information. See, e.g.,
Malibu Media, LLC v. Doe, 2015 WL 4092417 (S.D.N.Y.); Malibu Media, LLC v. Doe, 2015 WL
1780965 (S.D.N.Y.); Malibu Media, LLC v. Doe, 2015 WL 4923114 (S.D.N.Y.). I share these
concerns. This order is therefore subject to the following conditions and limitations:
1.

Plaintiff may subpoena defendant’s ISP only to obtain defendant’s name and
address, but not defendant’s e-mail or telephone number. Plaintiff may only use
defendant’s name and address, if obtained by defendant’s ISP, for the purposes of
this litigation; plaintiff is ordered not to disclose defendant’s name or address, or
any other identifying information other than defendant’s ISP number, that plaintiff
may subsequently learn. Plaintiff shall not threaten to disclose any of defendant’s
identifying information. Defendant will be permitted to litigate this case
anonymously unless and until this Court orders otherwise and only after defendant
has had an opportunity to challenge the disclosure. Therefore, plaintiff is ordered
not to publicly file any of defendant’s identifying information and to file all
documents containing defendant’s identifying information under seal.

2.

Plaintiff may immediately serve a Rule 45 subpoena on defendant’s ISP to obtain
defendant’s name and current and permanent address. Plaintiff is expressly not
permitted to subpoena the ISP for defendant’s e-mail addresses or telephone
numbers. Plaintiff shall serve defendant’s ISP with a copy of the complaint, this
Order, and the subpoena.

3.

After having been served with the subpoena, the ISP will delay producing to
plaintiff the subpoenaed information until after it has provided defendant John Doe
with:
a. Notice that this suit has been filed naming defendant as the one that
allegedly downloaded copyright protected work;
b. A copy of the subpoena, the complaint filed in this lawsuit, and this Order;
and
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c. Notice that the ISP will comply with the subpoena and produce to plaintiff
the information sought in the subpoena unless, within 60 days of service of
the subpoena on defendant by the ISP, defendant files a motion to quash the
subpoena or for other appropriate relief in this Court. If a timely motion to
quash is filed, the ISP shall not produce the subpoenaed information until
the Court acts on the motion.
4.

Defendant’s ISP will have 60 days from the date of service of the Rule 45 subpoena
upon it to serve defendant John Doe with a copy of the complaint, this Order, and
the subpoena. The ISP may serve defendant John Doe using any reasonable means,
including written notice sent to his or her last known address, transmitted either by
first class mail or via overnight service.

5.

Defendant John Doe shall have 60 days from the date of service of the Rule 45
subpoena and this Order upon him to file any motions with this Court contesting
the subpoena (including a motion to quash or modify the subpoena), as well as any
request to litigate the subpoena anonymously. The ISP may not turn over the
identifying information of defendant to plaintiff before the expiration of this 60day period. Additionally, if defendant or the ISP files a motion to quash or modify
the subpoena, or a request to litigate the subpoena anonymously, the ISP may not
turn over any information to plaintiff until the issues have been addressed and the
Court issues an order instructing the ISP to resume turning over the requested
discovery.

6.

Defendant’s ISP shall preserve any subpoenaed information pending the resolution
of any timely filed motion to quash.

7.

Defendant’s ISP shall confer with plaintiff and shall not assess any charge in
advance of providing the information requested in the subpoena. If defendant’s ISP
receives a subpoena and elects to charge for the costs of production, it shall provide
a billing summary and cost report to plaintiff.

8.

Any information ultimately disclosed to plaintiff in response to a Rule 45 subpoena
may be used by plaintiff solely for the purpose of protecting plaintiff's rights as set
forth in its complaint.

9.

Plaintiff shall serve the ISP and file proof of such service within 14 days of this
order.

IT IS SO ORDERED.
Dated at Hartford, Connecticut, this 13th day of October 2017.
/s/
Michael P. Shea
United States District Judge
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