Malibu Media, LLC v. Doe

Filing 9

RULING (see attached) granting 7 Plaintiff's Motion for Leave to Serve A Third Party Subpoena Prior to A Rule 26(f) Conference. Plaintiff may serve the requested subpoena in conformance with the Court's Order ("General Provisions" and "Additional Conditions and Limitations") set forth in the "Conclusion" to the Ruling, at pages 10-15. Signed by Judge Charles S. Haight, Jr. on May 2, 2018. (Dorais, L.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

MALIBU MEDIA, LLC,
Civil Action No.
3: 18 - CV - 590 (CSH)

Plaintiff,
v.

MAY 2, 2018

JOHN DOE, subscriber assigned IP address
24.191.40.31,
Defendant.

RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A THIRD PARTY
SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE [Doc. 7]
HAIGHT, Senior District Judge:
I. INTRODUCTION
In this copyright infringement action, Plaintiff Malibu Media LLC ("Plaintiff" or "Malibu
Media") asserts that defendant John Doe, identified only by his Internet Protocol ("IP") address, has
unlawfully distributed eight of Plaintiff's copyrighted adult films by using BitTorrent, a "peer-to-peer
file sharing system[ ] used for distributing large amounts of data, including, but not limited to, digital
movie files."1 Doc. 1, at ¶ 11. Pursuant to Rule 26(d)(1), Fed. R. Civ. P., Plaintiff has moved for
leave to serve a third-party subpoena on Defendant's internet service provider ("ISP"), Optimum
Online, for the limited purpose of discovering Defendant's identity so that Plaintiff may serve

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As Plaintiff explains in its Complaint, "[i]n order to distribute a large file, the BitTorrent
protocol breaks a file into many small pieces" and "[u]sers then exchange these small pieces among
each other instead of attempting to distribute a much larger digital file." Doc. 1, ¶ 13. "After the
infringer receives all of the pieces of a digital media file, the infringer's BitTorrent client software
reassembles the pieces so that the file may be opened and utilized." Id., ¶ 14.
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Defendant with process and proceed in litigating this case. Doc. 7. For the reasons Plaintiff has
presented in its motion and supporting papers, and the discussion detailed below, the Court will grant
the motion for good cause, as limited by the conditions delineated herein.
II.

DISCUSSION

In general, parties "may not initiate discovery prior to satisfying the meet and confer
requirement of Fed. R. Civ. P. 26(f)." Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241
(S.D.N.Y. 2012). Specifically, under Rule 26(d)(1), Fed. R. Civ. P., "[a] party may not seek
discovery from any source before the parties have conferred as required by Rule 26(f)," except in
limited proceedings delineated in Rule 26(a)(1)(B), or "when authorized by these rules, by
stipulation, or by court order." "[C]ourts may in some instances order earlier discovery." Digital
Sin, 279 F.R.D. at 241 (citing Fed. R. Civ. P. 26(d)). See, e.g., Malibu Media, LLC v. John Doe
Subscriber Assigned IP Address 173.68.5.86, No. 1:16-CV-02462 (AJN), 2016 WL 2894919, at *2
(S.D.N.Y. May 16, 2016) ("[A] party may engage in discovery before such a [26(f)] conference
pursuant to a court order.") (citing Fed. R. Civ. P. 26(d)(1)).
When considering whether to grant a motion for expedited discovery prior to a Rule 26(f)
conference, courts apply a "flexible standard of reasonableness and good cause." Malibu Media,
LLC, 2016 WL 2894919, at *2 (gathering cases). See also Arista Records LLC v. Does 1-4, 589 F.
Supp. 2d 151, 152-53 (D. Conn. 2008) (applying "good cause" standard to request for expedited
discovery) (citation omitted). See generally 8A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2046.1 (3d ed. 2011) ("Although [Rule 26(d)] does not say so, it is
implicit that some showing of good cause should be made to justify such an order, and courts
presented with requests for immediate discovery have frequently treated the question whether to
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authorize early discovery as governed by a good cause standard.").
In the Second Circuit, in evaluating subpoenas seeking identifying information from ISPs
regarding subscribers who are parties to copyright infringement litigation, courts have examined the
following factors:
(1) [the] concrete[ness of the plaintiff's] showing of a prima facie claim of actionable
harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of
alternative means to obtain the subpoenaed information, . . . (4) [the] need for the
subpoenaed information to advance the claim, . . . and (5) the [objecting] party's
expectation of privacy.
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (quoting Sony Music Entm't , Inc.
v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004)). If "[a]pplication of these 'principal
factors' confirms that the Plaintiff is entitled" to the requested subpoena, the motion for early
discovery will be granted for "good cause." Malibu Media, LLC, 2016 WL 2894919, at *2.
Examining the principal factors in detail, the plaintiff must first state a prima facie claim for
copyright infringement. See, e.g., Sony Music Entm't Inc., 326 F. Supp. 2d at 565. Specifically, the
plaintiff must show: "(1) ownership of a valid copyright, and (2) copying of constituent elements of
the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361
(1991). See also Urbont v. Sony Music Entm't, 831 F.3d 80, 88 (2d Cir. 2016) (same).
The owner of a copyright has exclusive rights to reproduce that copyrighted work and to
distribute copies to the public by sale, transfer of ownership, rent, lease, or lending. 17 U.S.C.
§ 106. Moreover, a plaintiff is entitled to seek statutory damages and attorney's fees under the
United States Copyright Act if its copyrighted work was registered within three months of the first
date of publication. 17 U.S.C. §§ 411 (c)(2), 501.
A plaintiff makes "a concrete, prima facie case of copyright infringement by alleging
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ownership of the registered copyright and 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 the infringement." Malibu Media, LLC v. Doe, No. 14CV-4808 (JS)(SIL), 2016 WL 4574677, at *6 (E.D.N.Y. Sept. 1, 2016) (quoting Malibu Media,
LLC v. John Does 1-11, No. 12-CV-3810 (ER), 2013 WL 3732839, at *6 (S.D.N.Y. July 16, 2013)).
See also Sony Music Entm't Inc., 326 F. Supp. 2d at 565-66 ("[T]he use of P2P [peer-to-peer]
systems to download and distribute copyrighted music has been held to constitute copyright
infringement.") (collecting cases); Patrick Collins, Inc. v. John Doe 1, 945 F. Supp. 2d 367, 375
(E.D.N.Y. 2013) ("Indeed, every court to have addressed this issue has found a sufficiently alleged
copyright infringement claim based on BitTorrent technology, even when the defendant was merely
identified with an IP address.").
Malibu Media has alleged that it is the owner of the adult films at issue. See Doc. 1, ¶ 23;
Doc. 1-2 (list of "Copyrights-In-Suit for IP Address 24.191.40.31"). In addition, Malibu Media has
made a plausible showing that wrongful "copying" of that work has occurred by alleging that its
investigator, IPP International UG ("IPP"), has established a direct IP connection with the
Defendant's IP address, as set forth in Plaintiff' Exhibit A to its Complaint. Doc. 1, ¶ 18. In
particular, Plaintiff has alleged that its investigator, IPP, has established that Defendant's IP address
was used to unlawfully download eight of Plaintiff's copyrighted movies from the BitTorrent file
distribution network. Id., ¶¶ 18-21; see also Doc. 1-1 and 1-2 (Ex. A & B, respectively).2 Under
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In paragraph 21 of its Complaint [Doc. 1], Malibu Media states:

A full copy of each digital media file was downloaded from the BitTorrent file
distribution network, and it was confirmed through independent calculation that the
file hash correlating to each file matched what is listed on Exhibit A. At no point was
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these circumstances, Plaintiff has stated a prima facie case for actionable harm due to copyright
infringement.
Second, in order to show "good cause" for early discovery, the plaintiff must narrowly tailor
and specify the information sought by the discovery request. The information requested in the
subpoena must be limited, seeking "concrete and narrow information: the name and address of the
subscriber associated with Doe [Defendant's] IP address . . . . " John Wiley & Sons, Inc. v. Doe Nos.
1-30, 284 F.R.D. 185, 190 (S.D.N.Y. 2012). Courts have labeled the subscriber's identity and address
as "highly specific,” Malibu Media, 2016 WL 4574677, at *6, recognizing that "Plaintiffs clearly
need identification of the putative John Does in order to serve process on them and prosecute their
claims," UN4 Prods., Inc. v. Doe-173.68.177.95, No. 17-CV-3278 (PKC) (SMG), 2017 WL
2589328, at *3 (E.D.N.Y. June 14, 2017) (citation and internal quotation marks omitted). See also
Sony Music Entm't Inc., 326 F. Supp. 2d at 566 ("Ascertaining the identities and residences of the
Doe defendants is critical to plaintiffs' ability to pursue litigation, for without this information,
plaintiffs will be unable to serve process."); Malibu Media, LLC, 2013 WL 3732839, at *5 n.1
("Discovery requests must be 'sufficiently specific' to establish a reasonable likelihood that the
discovery request would lead to identifying information that would make possible service upon
particular defendants who could be sued in federal court.'") (quoting Sony Music Entm't Inc., 326 F.
Supp. 2d at 566).
In the case at bar, Plaintiff requests to serve a subpoena to obtain "the true name and address

Plaintiff's copyrighted content uploaded to any other BitTorrent user.
Plaintiff subsequently concluded, "Defendant downloaded, copied, and distributed a complete copy
of Plaintiff's works without authorization as enumerated on Exhibits A and B." Doc. 1, ¶ 24.
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of the Defendant to whom the ISP assigned an IP address as set forth on Exhibit A in the
Complaint." Doc.7-5, ¶ 2. Because the requested subpoena is sufficiently specific, the second
principal factor weighs in favor of the Court granting Plaintiff's motion for leave to serve the
subpoena.
Third, there must be no "alternative means to obtain the subpoenaed information." Arista
Records, 604 F.3d at 119 (quoting Sony Music Entm't Inc., 326 F. Supp. 2d at 564-65). In the case
at bar, Plaintiff "knows Defendant only by his or her IP address." Doc. 7-1, at 15. Plaintiff asserts
that "[t]he government, law enforcement officials, criminal and civil judges, and ISPs alike all
acknowledge that subpoenaing an ISP is the only way to identify an internet subscriber." Id. That
is because "[t]here are no publicly-available databases or 'yellow pages' that can identify an
individual by an IP address." Id. Moreover, ISP records "are the only available evidence that allows
[one] to investigate who committed crimes on the Internet." Id. (emphasis in original)(quoting Jason
Weinstein, Deputy Assistant Attorney General , Criminal Division, "Statement Before the
Committee re Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, United States
House of Representatives (January 25, 2011)). Therefore, "issuing a subpoena to the responsible
ISP is the only way to identify the subscriber of an IP address." Id., at 16 (citing United States v.
Chamberlin, No. 09-CR-6169 (CJS), 2010 WL 1904500, *2 (W.D.N.Y. May 12, 2010) (subpoenaing
an ISP to identify IP address subscriber) and collecting cases). In sum, Plaintiff has established that
it lacks alternative means to obtain the subpoenaed information, namely, Defendant's identity and
address.
Fourth, the plaintiff must show that the subpoenaed information is necessary to advance the
claim at issue. As stated supra, Malibu Media cannot learn the subscriber's identity without the
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subpoenaed information and consequently cannot serve process on Defendant. See, e.g., Sony Music
Entm't Inc., 326 F. Supp. 2d at 566. See also Arista Records LLC, 589 F. Supp. 2d at 153 ("Because
learning the true identities of the pseudonymous individuals alleged to have violated Plaintiffs'
copyrights is essential to their prosecution of this litigation, Plaintiffs have demonstrated their need
for expedited discovery."). As one district court concluded in this Circuit, "[w]ithout learning the
Defendant's identity and address, the Plaintiff will be unable to serve process and pursue its claim."
Malibu Media, LLC v. Doe, No. 15-CV-3504 (JFB) (SIL), 2016 WL 4444799, at *11 (E.D.N.Y.
Aug. 23, 2016) (citation omitted).
Finally, with respect to the fifth prong, the Court weighs the Plaintiff's interest in obtaining
the information against that of Defendant's right to privacy. To balance these interests, the Court
assesses whether Defendant has an expectation of privacy in his of her IP address while infringing
copyrighted material.
The Second Circuit has stated that "[t]he Supreme Court has long held that a 'person has no
legitimate expectation of privacy in information he voluntarily turns over to third parties,' including
phone numbers dialed in making a telephone call and captured by a pen register." United States v.
Ulbricht, 858 F.3d 71, 96 (2d Cir. 2017) (quoting Smith v. Maryland, 442 U.S. 735 (1979)). "The
recording of IP address information and similar routing data, which reveal the existence of
connections between communications devices without disclosing the content of the communications,
are precisely analogous to the capture of telephone numbers at issue in Smith." Ulbricht, 858 F.3d
at 97. The Second Circuit then "join[ed] the other circuits . . . [to] hold that collecting IP address
information devoid of content is 'constitutionally indistinguishable from the use of a pen register.'"
Id. (quoting United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008), cert. denied, 555 U.S. 908
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(2008)). Specifically, there is no expectation of privacy in "subscriber information provided to an
internet provider," such as an IP address.3 Id. (quoting United States v. Christie, 624 F.3d 558, 573
(3d Cir. 2010)). Such information has been "voluntarily conveyed to third parties." Christie, 624
F.3d at 573.4
In cases where parties have argued that the First Amendment protected their anonymous
speech in using their IP addresses, the Second Circuit has held that copyright infringers are not
entitled to shield their identities from those who seek to enforce their claims under copyright law.
See, e.g., Arista Records, LLC, 604 F.3d at 124 (holding defendant's "expectation of privacy for
sharing copyrighted [works] through an online file-sharing network [was] simply insufficient to

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In copyright infringement cases, defendants have argued unsuccessfully that the revelation
of their subscriber information, i.e., their IP address, violates their right to privacy under the First
Amendment or the Fourth Amendment. For example, they have argued that the First Amendment
protects anonymous speech, citing such cases as Buckley v. Am. Constitutional Law Found., 525 U.S.
182, 200 (1999). See Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 562 (S.D.N.Y.
2004); U.S. Const. amend. I (protecting one's anonymous speech). In other cases, they have asserted
that the Fourth Amendment protects their personal information in their IP address from unreasonable
seizure. See United States v. Ulbricht, 858 F.3d 71, 96 (2d Cir. 2017); U.S. Const. amend. IV
(protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures"). These privacy arguments have failed. The First Amendment
does not protect copyright infringement. See, e.g., Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539, 555-56 (1985). "Parties may not use the First Amendment to encroach upon the
intellectual property rights of others." Sony Music Entm't Inc., 326 F. Supp. 2d at 563 (citing In
re Capital Cities/ABC, Inc., 918 F.2d 140, 143 (11th Cir.1990)). Moreover, the Fourth Amendment
does not protect infringers who have voluntarily provided "their IP addresses to Internet service
providers for the specific purpose of directing the routing of information." Ulbricht, 858 F.3d at 96
(citing Christie, 624 F.3d at 574).
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See also, e.g., Raw Films, Ltd. v. John Does 1-15, No. CIV.A. 11-7248, 2012 WL 1019067,
at *8 (E.D. Pa. Mar. 26, 2012) (The "expectation of internet users engaging in online file-sharing .
. . is at most minimal because those individuals have already voluntarily given up certain information
by engaging in that behavior."); Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 451 (C.D. Cal.
2007) ("To the extent the [internet] users are engaged in copyright infringement, the First
Amendment affords them no protection whatsoever.") (citing Harper & Row Publishers, Inc. v.
Nation Enters, 471 U.S. 539, 559 (1985)).
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permit him to avoid having to defend against a claim of copyright infringement"). The district courts
within this Circuit have thus allowed copyright plaintiffs to obtain infringers' ISP addresses. For
example, in Sony Music Entm't Inc. v. Does 1-40, the court held that "defendants have little
expectation of privacy in downloading and distributing copyrighted songs without permission." 326
F. Supp. 2d at 566. Accordingly, the copyright plaintiffs were "entitled to discovery in light of [the]
defendants' minimal expectation of privacy" in transmitting information on the internet in violation
of applicable law. Id. See also, e.g., Rotten Records, Inc. v. Doe, 108 F. Supp. 3d 132, 134
(W.D.N.Y. 2015) ("Plaintiff's interest in learning Defendant's name and address outweighs
Defendant's privacy interest.") (citing Arista Records, LLC, 604 F.3d at 124).
Pursuant to the weight of relevant case authority, and particularly Second Circuit precedent,
the Court finds that the Doe Defendant's First Amendment right to remain anonymous must give way
to Plaintiff's right to use the judicial process to pursue its allegedly meritorious copyright
infringement claim. Moreover, the Doe Defendant lacks the right under the Fourth Amendment to
protect his IP address from revelation, where he has voluntarily shared such information with the
ISP, Optimum Online. Plaintiff will be granted leave to take early discovery to determine the
identity of Defendant Doe.
In granting early discovery by subpoena, the Court recognizes that in certain BitTorrent cases
involving adult content, other courts have protected the defendants' privacy with an order
establishing procedural safeguards.

For example, some courts have allowed the defendant to

proceed anonymously in the case. See e.g. Malibu Media, LLC, 2016 WL 4444799, at *2 ("[T]he
Court issued a Protective Order governing the manner in which such information would be
disclosed."). As set forth infra, in ruling on Plaintiff's motion, the Court will establish procedures
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to protect the Doe Defendant's privacy here.
III. CONCLUSION
A. General Provisions
For the foregoing reasons, the Court hereby GRANTS the Plaintiff's "Motion for Leave to
Serve a Third Party Subpoena Prior to a Rule 26(f) Conference" [Doc. 7] and ORDERS, as follows:
1.

Under relevant Second Circuit authority, Plaintiff Malibu Media has established that
"good cause" exists for the Court to grant Plaintiff leave to serve a third party
subpoena on the ISP, Optimum Online, for the purpose of determining the identity
of the alleged infringer, Defendant Doe. See, e.g., Arista Records, LLC v. Doe 3, 604
F.3d 110, 119 (2d Cir. 2010); Sony Music Entm’t v. Does 1-40, 326 F. Supp. 2d 556,
564-65 (S.D.N.Y. 2004); Malibu Media, LLC v. John Does 1-11, No. 12 Civ. 3810
(ER), 2013 WL 3732839, at *6 (S.D.N.Y. 2013); John Wiley & Sons, Inc. v. Doe
Nos. 1-30, 284 F.R.D. 185, 189 (S.D.N.Y. 2012).

2.

Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to provide
Plaintiff with the true name and address of the Defendant to whom the ISP assigned
the indicated IP address ( 24.191.40.31), as set forth in Exhibit A to the Complaint.
Plaintiff shall attach to any such subpoena a copy of this Ruling.

3.

Plaintiff may also serve a Rule 45 subpoena in the same manner as described in the
preceding paragraph on any service provider who, in response to a subpoena, is
identified as a provider of Internet services to the Defendant.

4.

If the ISP or another service provider (as described in ¶ 3, supra) qualifies as a "cable
operator," as defined by 47 U.S.C. § 522(5), it shall comply with 47 U.S.C.
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§ 551(c)(2)(B) by sending a copy of this Ruling to the Defendant.5 Section
551(c)(2)(B) states in relevant part:
A cable operator may disclose such [personally identifying]
information if the disclosure is . . . made pursuant to a court
order authorizing such disclosure, if the subscriber is notified
of such order by the person to whom the order is directed.

5.

Plaintiff may only use the information disclosed in response to a Rule 45 subpoena
served on the ISP for the purpose of protecting and enforcing Plaintiff’s rights, as set
forth in its Complaint [Doc. 1].

B.

Additional Conditions and Limitations
In addition, the Court will address the concerns, acknowledged by Plaintiff and raised by

numerous federal courts, that defendants feel compelled to settle such copyright infringement actions
to prevent disclosure of their identities due to the nature of the adult films they have allegedly
distributed.6 See, e.g., Malibu Media, LLC v. John Does 1–5, 285 F.R.D. 273, 278 (S.D.N.Y.2012)
("[T]here is a fear that regardless of a defendant's actual culpability, [the Defendant] may feel
compelled to settle the lawsuit confidentially in order to avoid the embarrassment of being named
as a defendant in a case about the alleged illegal trading of a pornographic film.") (internal quotation
marks omitted)); Malibu Media, LLC v. Doe, No. 15 CIV. 4381 (JFK), 2015 WL 4923114, at *1

5

47 U.S.C. § 522(5) defines the term "cable operator" as "any person or group of persons
(A) who provides cable service over a cable system and directly or through one or more affiliates
owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a cable system."
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Due to such concerns, Plaintiff has consented to the conditions that Defendant may proceed
anonymously and Plaintiff may not solicit settlement prior to service of the complaint upon the
Defendant. Doc. 7-1, at 4-5. These conditions are endorsed by the Court in this Ruling at
paragraphs 1 and 8, respectively of the "Additional Conditions and Limitations."
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(S.D.N.Y. Aug. 18, 2015) ("[C]ourts in this district have expressed concern . . . that disclosure of
a defendant's name or other identifying information in cases involving infringement of adult films
could lead to abusive litigation through coercion."); Malibu Media, LLC v. Doe, No. 15 CIV. 4369
(AKH), 2015 WL 4092417, at *2 (S.D.N.Y. July 6, 2015) (In discussing the increasing "danger of
copyright trolls," the Court noted that "the late Judge Harold Baer, Jr. explained that '[i]n such cases,
there is a risk not only of public embarrassment for the misidentified defendant, but also that the
innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the
dissemination of publicity surrounding unfounded allegations.'") (quoting Media Prod., Inc. v. Does
1-26, No. 12 CIV. 3719, 2012 WL 2190613, at *1 (S.D.N.Y. June 12, 2012)).
In light of such concerns, the Court imposes 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 addresses or telephone numbers. As set forth
above, Plaintiff may only use this information (name and address) 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.

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2.

As to timing, Plaintiff may immediately serve a Rule 45 subpoena on Defendant's ISP
to obtain Defendant's name and current and permanent address. Plaintiff is reminded
that it must serve Defendant with a copy of the Complaint, this Ruling, 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 who allegedly
downloaded copyright protected work;

b.

a copy of the subpoena, the Complaint filed in this lawsuit, and this Ruling;
and

c.

notice that the ISP will comply with the subpoena and produce to Plaintiff the
information sought in the subpoena unless, within sixty (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 Ruling, 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.

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5.

Defendant John Doe shall thereafter have sixty (60) days from the date of service of
the Rule 45 subpoena and this Ruling upon him to file any motions with this Court
to contest the subpoena (including a motion to quash or modify the subpoena), as
well as to request to litigate the subpoena anonymously. During this sixty (60)-day
period, if Defendant contests the subpoena, it shall notify the ISP, which shall then
not turn over the Defendant's identifying information to Plaintiff. Upon expiration of
the sixty (60) days, if Defendant has filed 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 unless and until the Court resolves the issue(s) and instructs
the ISP when it may, if ever, turn the requested discovery over to the Plaintiff. In the
mean time, the ISP must preserve all subpoenaed information pending the resolution
of any timely filed motion to quash.

6.

Alternatively, if the sixty (60)-day period referenced in the preceding paragraph
elapses without Defendant or the ISP contesting the subpoena, the ISP shall have
fourteen (14) days thereafter to produce the information which is responsive to the
subpoena to the Plaintiff.

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.

Plaintiff may not solicit settlement of this case prior to service of the Complaint upon
the Defendant. Doc. 7-1, at 4-5. Plaintiff has consented to this condition with the
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understanding that defendants in such infringement cases may feel coerced to settle
to avoid a risk of public embarrassment.
The foregoing is SO ORDERED.
Dated: New Haven, Connecticut
May 2, 2018

/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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