United States District Court, D. Connecticut
ORDER RE: [8] MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA PRIOR TO RULE 26(f) CONFERENCE
KARI
A. DOOLEY, UNITED STATES DISTRICT JUDGE
Plaintiff
Strike 3 Holdings, LLC (the “Plaintiff”) alleges
that defendant John Doe, identified only by his IP address,
(the “Defendant”) committed copyright
infringement by distributing the Plaintiff's adult films
using BitTorrent, a peer-to-peer file distribution network.
ECF No. 1. By motion dated January 9, 2019, pursuant to Fed
R. Civ. P. 26(d)(1), the Plaintiff requested leave to serve a
third-party subpoena on the Defendant's internet service
provider (“ISP”) for the limited purpose of
discovering the Defendant's identity so as to be able to
effectuate service upon the Defendant and proceed with the
case. ECF No. 8. Largely for the reasons set forth in the
Plaintiff's memorandum, the motion is granted subject to
the following limitations. These limitations arise out of
concerns regarding the potentially coercive effect of public
disclosure of the Defendant's identify and the attendant
impact on the due administration of justice. See,
e.g., Malibu Media, LLC v. Doe, No. 15-cv-4369
(AKH), 2015 WL 4092417 (S.D.N.Y. July 6, 2015); Malibu
Media, LLC v. Doe, No. 15-cv-1883 (LTS) (KNF), 2015 WL
1780965 (S.D.N.Y. Apr. 10, 2015); Malibu Media, LLC v.
Doe, No. 15-cv-4381 (JFK), 2015 WL 4923114 (S.D.N.Y.
Aug. 18, 2015).
Upon
receiving the subpoenaed information, the Plaintiff shall not
initiate settlement discussions with the Defendant prior to
effectuating service upon the Defendant. Further:
1. The
Plaintiff may subpoena the Defendant's ISP only to obtain
the Defendant's name and address, but not the
Defendant's e-mail addresses or telephone numbers. The
Plaintiff may only use the Defendant's name and address,
if obtained by the Defendant's ISP, for the purposes of
this litigation. The Plaintiff is ordered not to disclose the
Defendant's name or address, or any other identifying
information other than the Defendant's ISP number. The
Plaintiff shall not threaten to disclose any of the
Defendant's identifying information. The Plaintiff shall
not publicly file any of the Defendant's identifying
information and shall file all documents containing the
Defendant's identifying information under seal until such
time for the Defendant to seek an order permitting him to
proceed anonymously has passed.
2. The
Plaintiff may immediately serve a Rule 45 subpoena on the
Defendant's ISP to obtain the Defendant's name and
current and permanent address. The Plaintiff shall serve the
Defendant's ISP with a copy of the complaint filed in
this lawsuit (the “Complaint”), this Order, and
the subpoena.
3.
After having been served with the subpoena, the ISP shall,
within 30 days of such service, provide the Defendant with:
a. A copy of the subpoena, the Complaint, and this Order; and
b. Notice that the ISP will comply with the subpoena and
produce to the Plaintiff the information sought in the
subpoena unless, within 60 days of said notice, the Defendant
files a motion to quash the subpoena or for other appropriate
relief in this Court. Notice may be accomplished by any
reasonable means, including in writing sent to his or her
last known address transmitted either by first class mail or
overnight service.
4. The
Defendant shall have 60 days from his receipt of the Rule 45
subpoena and this Order 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 the Defendant to the Plaintiff
before the expiration of that 60-day period. Additionally, if
the 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 the
Plaintiff until the issues have been addressed and the Court
issues an order instructing the ISP to resume turning over
the requested discovery.
5. The
Defendant's ISP shall preserve any subpoenaed information
pending the resolution of any timely filed motion to quash.
6. The
Defendant's ISP shall confer with the Plaintiff and shall
not assess any charge in advance of providing the information
requested in the subpoena. If the Defendant's ISP
receives a subpoena and elects to charge for the costs of
production, it shall provide a billing summary and cost
report to the Plaintiff.
7. Any
information ultimately disclosed to the Plaintiff in response
to a Rule 45 subpoena may be used by the Plaintiff solely for
the purpose of protecting the Plaintiff's rights as set
forth in its complaint.
SO
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