United States District Court, D. Connecticut
ORDER GRANTING MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE
MICHAEL P. SHEA UNITED STATES DISTRICT JUDGE
Plaintiff
Strike 3 Holdings, LLC alleges that defendant John Doe,
identified only by his IP address, committed copyright
infringement by distributing plaintiff's adult films
using BitTorrent, a peer-to-peer file distribution network.
(ECF No. 1.) Plaintiff moves pursuant to Fed R. Civ. P.
26(d)(1) for leave to serve a third-party subpoena on
defendant's internet service provider (“ISP”)
before any Rule 26(f) conference 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 the case. (ECF No.
8.) Plaintiff also moves for an extension of pre-trial
deadlines in the Court's standing scheduling order in the
case. (ECF No. 9)
Because
the plaintiff has established that there is good cause, the
Motion for Leave to File a Third Party Subpoena Prior to a
Rule 26(f) Conference is GRANTED. The plaintiff has shown:
(1) a prima facie case of copyright infringement by
“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 infringement,
” Malibu Media, LLC v. Doe, No. 14-CV-4808
(JS)(SIL), 2016 WL 4574677, at *6 (E.D.N.Y. Sept. 1, 2016),
(2) that the subpoena is limited and only seeks
“concrete and narrow information: the name and address
of the subscriber associated with [the defendant's] IP
address[, ]” John Wiley & Sons, Inc. v.
Doe, 284 F.R.D. 185, 190 (S.D.N.Y. 2012); and (3) that,
because the internet service provider is the only entity that
can identify a subscriber's identity with an IP address,
there is “good cause to allow for [the] early
discovery” of subpoenaing the ISP. Next Phase
Distribution, Inc. v. John Does, 1-27, 284 F.R.D. 165,
171-72 (S.D.N.Y. 2012).
Many
courts around the nation have expressed concerns that, given
the nature of the films allegedly distributed by defendants,
defendants may feel coerced to settle these suits merely to
prevent public disclosure of defendants' identifying
information. See, e.g., Malibu Media, LLC v.
Doe, 2015 WL 4092417 (S.D.N.Y.); Malibu Media, LLC
v. Doe, 2015 WL 1780965 (S.D.N.Y.); Malibu Media,
LLC v. Doe, 2015 WL 4923114 (S.D.N.Y.). I share these
concerns. This order is therefore 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
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 ...