United States District Court, D. Connecticut
ORDER ON MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA
Victor
A. Bolden United States District Judge.
Malibu
Media, LLC (“Plaintiff” or “Malibu
Media”) 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. Complaint, dated July
23, 2018, ECF No. 1.
Malibu
Media 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.
See Motion for Leave to Serve a Third Party Subpoena
Prior to a Rule 26(f) Conference, dated August 7, 2018, ECF
No. 8.
For
substantially the reasons set forth in Malibu Media's
motion and supporting documents, Malibu Media's motion is
GRANTED. The Court concludes that Malibu
Media has established good cause for entry of this order.
Malibu
Media acknowledges the concerns raised by many district
courts around the nation[1] that, given the nature of the films
allegedly distributed by defendants in the many essentially
identical actions that Malibu Media has filed nationwide,
those defendants may feel coerced to settle these suits
merely to prevent public disclosure of their identifying
information as part of court records. See, e.g.,
Malibu Media, LLC v. Doe, No. 15-cv-4369, 2015 WL
4092417 (S.D.N.Y. July 6, 2015); Malibu Media, LLC v.
Doe, No. 15-cv-1883, 2015 WL 1780965 (S.D.N.Y. April 10,
2015); Malibu Media, LLC v. Doe, No. 15-cv-4381
(JFK), 2015 WL 4923114 (S.D.N.Y., Aug. 18, 2015).
The
Court recognizes 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.
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
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