Strike 3 Holdings, LLC v. Doe

Filing 12

ORDER granting #10 Letter Motion for Discovery. Strike 3 may serve a Rule 45 subpoena on Optimum Onlinethe ISP identified inits motionto obtain information to identify John Doe, specifically his or her true name andcurrent and permanent address. Strike 3 shall not subpoena the ISP for John Doe's emailaddresses or telephone numbers. The subpoena shall have a copy of this Order attached, alongwith the attached "Notice to Defendant." Optimum Online will have 60 days from the date of service of the Rule 45subpoena to serve John Doe with a copy of the subpoena, a copy of this Order, and a copy of the"Notice to Defendant." The Order should be attached to the "Notice to Defendant" such that the"Notice to Defendant" is the first page of the materials enclosed with the subpoena. OptimumOnline may serve John Doe using any reasonable means, including written notice sent to his orher last known address, transmitted either by first-class U.S. mail or overnight service and further set forth in this Order. Strike 3's motion for leave to serve a third-party subpoena on Optimum Online is GRANTED. The Clerk of Court is directed to terminate ECF No. 10.SO ORDERED. (Signed by Judge Jennifer H. Rearden on 3/26/2024) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
-v.JOHN DOE, Subscriber assigned IP address
47.17.208.241,

24 Civ. 01693 (JHR)
ORDER

Defendant.
JENNIFER H. REARDEN, District Judge:
Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks to serve a subpoena on Optimum
Online, an internet service provider (“ISP”), to ascertain the identity of the John Doe Defendant
in this case.
Several judges in this District have previously addressed the legal issues raised in Strike 3’s
motion, ECF No. 10. See, e.g., Malibu Media, LLC v. John Doe, No. 15 Civ. 7333 (S.D.N.Y.
Oct. 8, 2015); Malibu Media, LLC v. John Does 1-4, 12 Civ. 2955, 2012 WL 3104887, at *2
(S.D.N.Y. July 31, 2012); Digital Sin Inc. v. Does 1–27, No. 12 Civ. 3873, 2012 WL 2036035, at
*3 (S.D.N.Y. June 6, 2012). For the reasons stated in those opinions, the Court finds that Strike
3 has established good cause to serve a third-party subpoena on John Doe’s ISP and to do so
prior to a Rule 26(f) conference. Strike 3 has established a prima facie claim of copyright
infringement. Moreover, Strike 3 needs John Doe’s identity in order to effect service. Finally,
Strike 3 has no alternative means to ascertain John Doe’s identity. The Court also concludes that
there is good cause to issue a protective order in connection with this subpoena, considering the
risk of false positive identifications that could result in “annoyance, embarrassment, oppression,
or undue burden or expense.” Fed. R. Civ. P. 26(c). Accordingly, it is hereby ORDERED that:

1.

Strike 3 may serve a Rule 45 subpoena on Optimum Online—the ISP identified in

its motion—to obtain information to identify John Doe, specifically his or her true name and
current and permanent address. Strike 3 shall not subpoena the ISP for John Doe’s email
addresses or telephone numbers. The subpoena shall have a copy of this Order attached, along
with the attached “Notice to Defendant.”
2.

Optimum Online will have 60 days from the date of service of the Rule 45

subpoena to serve John Doe with a copy of the subpoena, a copy of this Order, and a copy of the
“Notice to Defendant.” The Order should be attached to the “Notice to Defendant” such that the
“Notice to Defendant” is the first page of the materials enclosed with the subpoena. Optimum
Online may serve John Doe using any reasonable means, including written notice sent to his or
her last known address, transmitted either by first-class U.S. mail or overnight service.
3.

John Doe shall have 30 days from the date of service of the Rule 45 subpoena and

this Order upon him or her 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. Optimum Online may not turn over John Doe’s identifying information to Strike
3 before the expiration of this 30-day period. Additionally, if John Doe or Optimum Online files
a motion to quash the subpoena, Optimum Online may not turn over any information to Strike 3
until the issues have been addressed and the Court issues an Order instructing Optimum Online
to resume providing the requested discovery. Should John Doe move to quash the subpoena or
to proceed anonymously, he or she shall, simultaneously with filing such a motion, also notify
Optimum Online so that it is on notice not to release any of John Doe’s contact information to
Strike 3 until the Court rules on any such motions.

2

4.

If that 30-day period lapses without John Doe or Optimum Online contesting the

subpoena, Optimum Online shall have 10 days to produce to Strike 3 the information responsive
to the subpoena.
5.

Optimum Online shall preserve any subpoenaed information pending the

resolution of any timely-filed motion to quash.
6.

Optimum Online shall confer with Strike 3 and shall not assess any charge in

advance of providing the information requested in the subpoena. Should Optimum Online elect
to charge for the costs of production, it shall provide a billing summary and cost report to Strike
3.
7.

Strike 3 shall serve a copy of this Order, along with any subpoena issued pursuant

to the Order, on Optimum Online.
8.

Any information ultimately disclosed to Strike 3 pursuant to its Rule 45 subpoena

may be used by Strike 3 solely for the purpose of protecting Strike 3’s rights as set forth in its
Complaint.
Strike 3’s motion for leave to serve a third-party subpoena on Optimum Online is
GRANTED. The Clerk of Court is directed to terminate ECF No. 10.
SO ORDERED.
Dated: March 26, 2024
New York, New York

JENNIFER H. REARDEN
United States District Judge

3

NOTICE TO DEFENDANT
1. You are a defendant in Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address
47.17.208.241, Case No. 24 Civ. 01693 (JHR), a case now pending before the Honorable
Jennifer H. Rearden, United States District Judge for the Southern District of New York.
2. Attached is Judge Rearden’s Order, dated March 26, 2024, which sets forth certain
deadlines and procedures related to this case.
3. You may hire a lawyer to represent you in this case or you may proceed pro se (that is, you
may represent yourself without the assistance of a lawyer). If you choose to proceed pro se,
all communications with the Court should be through the Pro Se Office of the United States
District Court for the Southern District of New York. The Pro Se Office is located in Room
230 of the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and may be
reached at [phone].
4. The Plaintiff in this case has filed a lawsuit claiming that you have illegally downloaded
and/or distributed copyrighted films on your computer.
5. The Plaintiff may not know your actual name or address, but it does know the Internet
Protocol address (“IP address”) of the computer associated with the alleged downloading
and/or distributing.
6. The Plaintiff has filed a subpoena requesting your identity and contact information from your
Internet Service Provider (“ISP”).
7. If you do not want your ISP to provide this information to the Plaintiff and you believe there
is a legal basis for the ISP to withhold the information, you may file a motion to “quash” or
“modify” the subpoena. This must be done within 60 days of the date that you receive notice
from your ISP that you are a defendant in this case. If you choose to proceed pro se, your

motion to quash or modify the subpoena should be mailed to the Pro Se Office, as described
in paragraph 3.
8. If you move to quash the subpoena or otherwise move to prevent your name from being
turned over to the Plaintiff, you may proceed anonymously at this time. Nevertheless, if you
are representing yourself, you will have to complete an information card that you can obtain
from the Pro Se Office of the Court. This information is solely for use by the Court, and the
Court will not provide this information to lawyers for the Plaintiff unless and until it
determines there is no basis to withhold it. The Court must have this information so that it
may communicate with you regarding the case.
9. Even if you do not file a motion to quash or modify the subpoena, you may still proceed in
this case anonymously at this time. That means that the Court and the Plaintiff will know
your identity and contact information, but your identity will not be made public unless and
until the Court determines there is no basis to withhold it.
10. If you want to proceed anonymously without filing a motion to quash or modify the
subpoena, you (or, if represented, your lawyer) should provide a letter stating that you would
like to proceed anonymously in your case. If you choose to proceed pro se, your letter
should be mailed to the Pro Se Office, as described in paragraph 3. This must be done within
60 days of the date that you receive notice from your ISP that you are a defendant in this
case. You should identify yourself in your letter by the case in which you are a defendant
and your IP address. If you submit this letter, then your identity and contact information will
not be revealed to the public unless and until the Court says otherwise.