Strike 3 Holdings, LLC v. Doe

Filing 8

Memorandum Opinion and Order: For the reasons stated herein, Plaintiff's Motion for a Protective Order and for an Order Overruling Defendant's Objection to Its Subpoena (Doc. No. 7 ) is DENIED. Plaintiff is ORDERED to file a non-red acted version of Document No. 7-1 by November 20, 2023. Failure to comply with this order or any other order of this Court could result in sanctions, including dismissal of the complaint for want of prosecution. Judge Bridget Meehan Brennan on 11/15/2023. (H,AR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
STRIKE 3 HOLDINGS, LLC
Plaintiff,
v.
JOHN DOE, subscriber assigned
IP address 71.73.73.137,
Defendant.

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CASE NO. 1:23-cv-1691
JUDGE BRIDGET MEEHAN BRENNAN
MEMORANDUM OPINION
AND ORDER

Before the Court is Plaintiff’s Motion for a Protective Order and for an Order Overruling
Defendant’s Objection to Its Subpoena (the “Motion”). (Doc. No. 7.) For the following reasons,
the Motion is DENIED.
I.

Background

Plaintiff previously moved this Court for leave to file a subpoena “so that Plaintiff may
learn Defendant’s identity . . . and effectuate service. . . . Without this information, Plaintiff
cannot serve Defendant nor pursue this lawsuit . . . .” (Doc. No. 6 at 47-48.) The Court granted
leave to file the subpoena on Spectrum. (See Order (September 8, 2023).)
On August 29, 2023, this Court entered an Initial Standing Order (“ISO”), which
provides in Section VII: “Before filing a document with redactions, the party must seek leave to
do so, explaining the basis for each redaction requested, certifying that the party has conferred
with the producing party and the producing party's position (if the party did not produce the

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document), and simultaneously providing unredacted versions of the document at issue with the
proposed redactions highlighted or otherwise marked to the Court for review.” (Doc. No. 5 at
42.)1
In a footnote, Plaintiff’s motion states that it “redacted Defendant’s identifying
information in its exhibit.” That exhibit appears to be redacted where the sender’s name and
contact information would be. (Doc. No. 7-1.) Plaintiff did not comply with any aspect of
Section VII of the ISO in filing Document No. 7-1. Plaintiff did not have approval to file this
redacted exhibit.
Instead, Plaintiff filed the present Motion pursuant to Fed. R. Civ. P. 26(c) to avoid
having to identify the defendant by name. Plaintiff asks that the defendant be permitted to
proceed as “John Doe” during this litigation. (Doc. No. 7 at 86; Doc. No. 7-2 at 89-90.)
II.

Law and Analysis

Rule 26(c)(1) provides in pertinent part:
A party or any person from whom discovery is sought may move for a protective
order in the court where the action is pending . . . . The motion must include a
certification that the movant has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute without court action.
The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense . . . .
Fed. R. Civ. P. 26(c)(1).
“As a general matter, a complaint must state the names of all parties.” Doe v. Porter, 370
F.3d 558, 560 (6th Cir. 2004) (citing Fed. R. Civ. P. 10(a)). “Under certain circumstances,
however, the district court may allow a [party] to proceed under a pseudonym by granting a
protective order.” D.E. v. John Doe, 834 F.3d 723, 728 (6th Cir. 2016). But that is only in an

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For ease and consistency, record citations are to the electronically stamped CM/ECF document
and PageID# rather than any internal pagination.
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exceptional case. See id. (citing Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992) (per curiam)).
The Sixth Circuit affirmed a district court’s denial of a protective order to proceed anonymously
where the motion “did not articulate concerns that outweigh the presumption of openness in
judicial proceedings.” Id. The decision whether to issue a protective order in these situations is
committed to a district court’s discretion. Doe v. Carson, No. 19-1566, 2020 WL 2611189, at *2
(6th Cir. May 6, 2020).
The Motion does not identify exceptional circumstances. In fact, the Motion does not
specify any reason particular to this case or this potential defendant that would justify a departure
from open judicial proceedings. Instead, the Motion argues a point that if accepted would
support initial anonymity for any defendant whose alleged conduct is described in any civil
complaint:
Allowing Defendant to proceed under the pseudonym “John Doe” will safeguard
Defendant’s identity while allowing Plaintiff to investigate its claim and protect
its copyrights. It will also give Defendant the opportunity to seek counsel,
prepare a defense, or request additional protections while Plaintiff prosecutes its
claim.
(Doc. No. 7 at 86.)
Plaintiff’s Motion is contrary to Sixth Circuit precedent. See Doe v. Carson, No. 191566, 2020 WL 2611189, at *2 (6th Cir. May 6, 2020) (holding that general concerns about
stigma did not suffice to allow a party to proceed anonymously).
Several considerations determine whether a [party’s] privacy interests
substantially outweigh the presumption of open judicial proceedings. They
include: (1) whether the [parties] seeking anonymity are suing to challenge
governmental activity; (2) whether prosecution of the suit will compel the
[parties] to disclose information “of the utmost intimacy”; (3) whether the
litigation compels [parties] to disclose an intention to violate the law, thereby
risking criminal prosecution; and (4) whether the [parties] are children.
Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). The first, third, and fourth Porter factors are

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not applicable.
As for the second Porter factor, the Court finds that naming the defendant in this case
does not reveal “the utmost intimacy.” If another defendant was accused of using BitTorrent
technology to download copies of other types of copyright-protected movies, there likely would
be no argument for anonymity. An adult viewing adult films in his own home is not illegal. See
generally Stanley v. Georgia, 394 U.S. 557 (1969). There is no basis to treat individuals in
BitTorrent downloading cases differently simply because of the type of movie they wish to view.
Finally, Plaintiff asks this Court to “overrule Defendant’s conclusory objection to its
subpoena so that the ISP may respond to it.” (Doc. No. 7 at 86.) As stated above, Plaintiff
moved this Court for permission to serve the subpoena on Spectrum so that Plaintiff could
ascertain the name of the customer using the IP address specified in the complaint. (Doc. No. 6
at 47-48.) The motion was granted. (See Order (September 8, 2023).)
Spectrum, the entity upon whom the subpoena was to be served, has not filed an
appearance or a motion to quash or modify the subpoena. The sender of the letter attached to the
Motion was not the recipient of the subpoena issued from this Court. (Doc. No. 7; see also
Order (9/8/2023).) Nor is the sender of that letter currently a party before this Court. This Court
does not have authority to rule on an “objection” from an unidentified letter writer with no
pending filing or business before this Court.
III.

Conclusion

Plaintiff’s Motion for a Protective Order and for an Order Overruling Defendant’s
Objection to Its Subpoena is DENIED. Plaintiff is ORDERED to file a non-redacted version of
Document No. 7-1 by November 20, 2023. Failure to comply with this order or any other order

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of this Court could result in sanctions, including dismissal of the complaint for want of
prosecution.
IT IS SO ORDERED.

Date: November 15, 2023

_______________________________
BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE

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