United States District Court, D. Connecticut
ORDER ON MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA, MOTION FOR EXTENSION OF PRE-TRIAL DEADLINES, AND
MOTION FOR AN EXTENSION OF TIME TO EFFECTUATE
SERVICE
VICTOR
A. BOLDEN, UNITED STATES DISTRICT JUDGE
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. Complaint, dated Aug. 9, 2018, ECF No.
1.
Strike
3 moves under Federal Rule of Civil Procedure 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, as only with
Defendant's identity will Plaintiff be able to serve
Defendant with process and proceed with this case. Motion for
Leave to Serve a Third Party Subpoena, dated Sept. 14, 2018,
ECF No. 8. Strike 3 also moves for an extension of time
within which to effectuate service on Defendant and an
extension of pre-trial deadlines. Motion for Extension of
Time Within Which to Effectuate Service on Defendant, dated
Nov. 7, 2018, ECF No. 10; Motion for Extension of Pretrial
Deadlines, dated Oct. 8, 2018, ECF No. 9.
As
Plaintiff has established good cause for entry of this order
with respect to service of a third-party subpoena, the motion
is GRANTED, subject to the limitations
discussed below. The motion for an extension of time within
which to effectuate service is GRANTED. 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, Pl.'s Mot. to Leave at 3, ECF No. 8-1,
that given the nature of the films allegedly distributed by
defendants in the many essentially identical actions that
Strike 3 has filed nationwide, see, e.g., Strike
3 Holdings, LLC v. Doe, No. 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] defendants may feel coerced to settle
these suits merely to prevent public disclosure of their
identifying information as part of court records. 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.
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 ...