Strike 3 Holdings, LLC v. Doe

Filing 11

ORDER granting 8 Motion to serve a third-party subpoena; granting in part and denying in part 10 Motion for Extension of Time. Signed by Judge Victor A. Bolden on 8/2/2018. (Riegel, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v.

No. 3:18-cv-00999 (VAB)

JOHN DOE subscriber assigned IP address
71.234.83.91,
Defendant.

ORDER ON MOTION FOR LEAVE TO SERVE THIRD PARTY SUBPOENA
AND MOTION FOR AN EXTENSION OF TIME
Strike 3 Holdings, LLC (“Plaintiff” or “Strike 3”) alleges that John Doe (“Defendant”),
identified only by his IP address, committed copyright infringement by distributing Plaintiff’s
copyrighted adult films using BitTorrent, a peer-to-peer file distribution network. ECF No. 1.
Strike 3 moves under 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 this case. ECF No. 8.
Strike 3 also moves for an extension of pre-trial deadlines. ECF No. 10.
Having concluded that Plaintiff has established good cause for entry of this order with
respect to service of a third-party subpoena, the Court GRANTS the motion, subject to the
below described limitations. The motion to extend pre-trial deadlines is GRANTED in part and
DENIED in part.
Strike 3 acknowledges the concerns raised by many district courts around the nation.
Given the nature of the films allegedly distributed by the defendants in the many essentially
identical actions that Strike 3 has filed nationwide, see, e.g., Strike 3 Holdings, LLC v. Doe, No.
1

3:17-cv-1680 (CSH), 2017 WL 5001474 (D. Conn. Nov. 1, 2017); Strike 3 Holdings, LLC v.
Doe, No. 3:18-cv-00681, 2018 WL 2926305 (D. Conn. June 7, 2018); Strike 3 Holdings, LLC v.
Doe, 17-cv-9654 (AT) (KNF), 2018 WL 1737217 (S.D.N.Y. Mar. 12, 2018),1 the defendants
may feel coerced to settle these suits merely to prevent public disclosure of their identifying
information as part of court records. See Malibu Media, LLC v. Doe, No. C 15-04441 WHA,
2016 WL 3383758, at *3 (N.D. Cal. June 20, 2016) (“The damages exposure in this case, as with
Malibu Media’s many other cases, is significant, so a defendant may feel pressure to settle even a
meritless case. Coupled with the taboo nature of the subject matter, there remains potential for
abuse.”). The Court shares these concerns. This Order therefore is 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.

1

Strike 3 is a prolific copyright litigant. See generally Dylan Love, The Most-Pirated Man in
Porn is Getting Angry, Inverse (May 24, 2017), available at
https://www.inverse.com/article/31350-greg-lansky-tushy-blacked-vixen-interview.
2

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
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 60 day 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.

3

Strike Three also asks the Court to extend the pre-trial deadlines in this case until after
the parties conduct a conference consistent with Rule 26(f) of the Federal Rules of Civil
Procedure. Plaintiff argues that Defendant has not yet been served and thus Plaintiff needs
additional time to amend the Complaint and prepare a discovery plan. The Court will modify the
Scheduling order, in part.
A scheduling order may be modified only for “good cause.” Fed. R. Civ. P. 16(b)(4). The
“good cause” inquiry turns on the diligence of the party seeking to modify the scheduling order.
Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (“[A] finding of ‘good
cause’ depends on the diligence of the moving party.”) (citations omitted); accord Fed. R. Civ. P.
16 advisory committee's notes to 1983 amendment (“[T]he court may modify the schedule upon
a showing of good cause if it cannot be met despite the diligence of the party seeking the
extension.”). See Fresh Del Monte, 304 F.R.D. at 174–75 (S.D.N.Y. 2014).
The Complaint has yet to be served on Plaintiff but issuance of this Order will facilitate
Strike 3’s ability to duly effect service. Given the stage of this litigation, Strike 3 has failed,
however, to demonstrate why the time allowed under the Federal Rules of Civil Procedure is
insufficient given the needs of the case.
The Court therefore will hold in abeyance all pre-trial deadlines and instructs the parties
to submit a Rule 26(f) Report as soon as practicable and consistent with the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 26(f)(1) (requiring the parties to confer at least 21 days
before a scheduling order is due under rule 16(b)); id. at 16(b)(2) (requiring entry of a scheduling
order within the earlier of ninety days after the defendant has been served with the complaint or
60 days after any defendant has appeared). Should, at that time, Strike 3 require additional time,
it should integrate such a need into the Rule 26 Report.

4

Having concluded that Plaintiff has established good cause for entry of this order with
respect to a third-party subpoena, the Court GRANTS the motion. The motion to extend pre-trial
deadlines is GRANTED in part and DENIED in part.
SO ORDERED at Bridgeport, Connecticut, this 2nd day of August, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

5