United States District Court, D. Connecticut
RULING ON MOTION TO QUASH (DOC. NO. 9)
ROBERT
M. SPECTOR, UNITED STATES MAGISTRATE JUDGE
On
November 28, 2018, Strike 3 Holdings, LLC (“Strike
3” or “plaintiff') commenced this action
against John Doe, a subscriber of IP address 32.212.123.108
(“Doe” or “defendant”). (Doc. No. 1).
The plaintiff is the owner of original “award
winning” motion pictures featured on its brand's
subscription-based adult websites. (Doc. No. 1 at 1). Strike
3 alleges that Doe's Internet Protocol (“IP”)
address has illegally distributed several of Strike 3's
motion pictures, “stealing these works on a grand
scale[, ]” and “committing rampant and wholesale
copyright infringement by downloading Strike 3's motion
pictures and distributing them to others.”
(Id. at 1-2). The defendant now moves to quash a
third-party subpoena that the plaintiff has served on the
defendant's Internet Service Provider (“ISP”)
to obtain the defendant's name and address. (Doc. No. 9).
For the reasons set forth below, the defendant's Motion
to Quash (Doc. No. 9) is DENIED, but the subpoena shall be
revised to include additional conditions, as detailed below.
I.
BACKGROUND
Prior
to commencing this action, Strike 3 hired an investigator,
IPP International U.G. (“IPP”), to monitor and
detect the infringement of Strike 3's content. (Doc. No.
7, Brief at 5). IPP employs a system that monitors the
BitTorrent file distribution network for the presence of
copyrighted works, and IPP's forensic software identifies
IP addresses that are being used by infringers to distribute
copyrighted works within the BitTorrent File Distribution
Network. (Doc. No. 7, Declaration of Tobias Fieser
(“Fieser Decl.”) ¶ 4). IPP discovered that
the defendant's IP address was illegally distributing
several of Strike 3's motion pictures. (Doc. No. 7,
Fieser Decl. ¶ 7). As developed by the United States
National Security Agency, digital files can be identified by
a “Crytographic Hash Value.” (Doc. No. 7, Fieser
Decl. ¶ 10). IPP's software determined that the
files being distributed by the defendant's IP address
have a unique identifier of the Cryptographic Hash.
(Id.). IPP provided this information to Strike 3 who
then viewed each of the unauthorized motion pictures
corresponding to the file hashes side by side with Strike
3's motion pictures, as published on their websites, and
as enumerated by their United States Copyright Office
identification numbers. (Doc. No. 7, Declaration of Susan B.
Stalzer (“Stalzer Decl.”) ¶ 9). The
plaintiff alleges that each digital media file, as identified
by the file hash value, is a copy of Strike 3's
corresponding motion picture and is identical, or strikingly
similar or substantially similar to the original work
identified by their United States Copyright Office
identification numbers. (Doc. No. 7, Stalzer Decl. ¶
10). In addition, Strike 3 used the American Registry for
Internet Numbers to confirm that the ISP did own the
defendant's IP address at the time of the alleged
infringements, and hence, has the relevant information to
identify Doe. (Doc. No. 7, Stalzer Decl. ¶ 11).
Strike
3 then retained a technology advisor to individually analyze
and retain forensic evidence captured by IPP. (Doc. No. 7,
Declaration of Philip Pasquale (“Pasquale Decl.”)
¶ 6). That advisor confirmed that the IPP recorded a
transaction occurring on September 8, 2018, with the IP
address 32.212.123.108. (Doc. No. 7, Pasquale Decl.
¶¶ 7, 9). Based on the experience of that advisor
in similar cases, he claims that the defendant's ISP,
Frontier Communications, is the only entity that can
correlate the IP address to its subscriber and identify the
defendant as the person assigned to IP address 32.212.123.108
during the time of the alleged infringement. (Doc. No. 7,
Pasquale Decl. ¶ 10).
Because
the plaintiff can identify the defendant only through this IP
address, the plaintiff moved this Court for leave to subpoena
the defendant's name and address from his ISP, prior to
the Rule 26(f) conference, pursuant to Rule 26(d)(1). (Doc.
No. 7). This Court (Arterton, J.) granted the plaintiff's
motion with several conditions, including the following: (1)
upon serving the ISP, the ISP must serve a copy of the Order
on the Doe subscriber; (2) the ISP must permit the defendant
60 days to contest the subpoena; (3) the ISP is prohibited
from turning over the defendant's identifying information
until the expiration of that 60-day period, and (4) the ISP,
once subpoenaed, must preserve any subpoenaed information
pending the resolution of any timely motion to quash. (Doc.
No. 8). The plaintiff served the subpoena on the
defendant's ISP, and this motion to quash by the
defendant followed.
II.
DISCUSSION
Federal
Rule of Civil Procedure 45 allows a party to serve a subpoena
for the production of documents and other information from a
non-party. See Fed. R. Civ. P. 45(a)(1). A party may
move to quash the subpoena if the subpoena (1) “fails
to allow a reasonable time to comply”; (2) requires a
non-party to travel beyond certain geographical limits; (3)
requires disclosure of privileged materials; (4) subjects a
person to “undue burden”; (5) requires disclosure
of “a trade secret or other confidential research,
development, or commercial information”; or (6)
requires disclosure of certain expert opinions. Fed.R.Civ.P.
45(d)(3)(A)-(B). The party seeking to quash a subpoena bears
the burden of persuasion, Travelers Indem. Co. v. Metro.
Life Ins. Co., 228 F.R.D. 111, 112 (D. Conn. 2005)
(citations omitted), and that standard applies in a case such
as this, when a person other than the subpoena recipient
moves to quash the subpoena. United States Regional Econ.
Dev. Auth., LLC v. Matthews, No. 10 CV 10983 (CSH), 2018
WL 2172713, at *7 (D. Conn. May 10, 2018) (holding that,
“as an exception to the general rule, a party has
standing to move to quash a subpoena directed at a nonparty
where the party seeks to enforce a claim of privilege or
personal right.”); see Langford v. Chrysler Motors
Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (noting that
“[i]n the absence of a claim of privilege a party
usually does not have standing to object to a subpoena
directed to a non-party witness[.]”).
The
defendant contends that the subpoena to produce private and
confidential information is “a violation of
privacy” in that the ISP may have incorrect records or
clerical errors and may misidentify the defendant, the
violation in question may have been committed by a third
party accessing the defendant's computer on an wireless
network, and the computer was previously owned by a third
party who may have used it to commit the violation in
question. (Doc. No. 9).
The
defendant's arguments as to the identity of the
individual who may have used his computer or his wireless
network, however, are not arguments for consideration at this
early stage in the case. See Malibu Media, LLC v.
Doe, No. 14-CV-4808 (JS)(SIL), 2016 WL 4574677, at *6
(E.D.N.Y. Sept. 1, 2016) (holding that “whether
Defendant has meritorious defenses to Plaintiff's claims
is not relevant for purposes of the instant motion to quash
or Plaintiff's ability to obtain the discovery sought in
the . . . Subpoena.”) (collecting cases)). As United
States District Judge Valerie Caproni recently held in
another Strike 3 Holdings case, a subpoena may not
be quashed on grounds that the information sought goes to the
“merits” of the party's case. Strike 3
Holdings, LLC v. Doe, 18 CV 2648 (VEC), 2019 WL 78987,
at *2 (S.D.N.Y. Jan. 2, 2019) (citing Achte/Neunte Boll
Kino Beteiligungs Gmbh & Co. v. Does 1-4577, 736
F.Supp.2d 212, 215-16 (D.D.C. 2010) (concluding that
“the merits of [a party's] case are not relevant to
the issue of whether [the party's] subpoena is valid and
enforceable.”); see also Handbook of Fed. Civ.
Disc. & Disclosure § 1:30 (4th ed. 2018)
(“[D]iscovery should not be denied because it relates
to a claim or defense that is being challenged as
insufficient.”); Voltage Pictures, LLC v. Does
1-5000, 818 F.Supp.2d 28, 35 (D.D.C. 2011) (“A
general denial of liability . . . is not a basis for
quashing” a subpoena)).
Federal
Rule of Civil Procedure 26(b)(1) governs the relevance of
documents requested by a Rule 45 subpoena, and Rule 26(b)(1)
allows for the discovery of any nonprivileged matters that
are “relevant to any party's claim or defense and
proportional to the needs of the case[.]” Fed.R.Civ.P.
26(b)(1). Rule 26 (b)(1) “directs courts to consider
‘the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access
to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and
whether the burden of experience of the proposed discovery
outweighs its likely benefit.'” United States
Sec. & Exch. Comm. v. Ahmed, Civ. No. 3:15 CV 675
(JBA), 2018 WL 1541902, at *2 (D. Conn. Mar. 29, 2018)
(quoting Fed.R.Civ.P. 26(b)(1); citing Henry v.
Morgan's Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC),
2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016)).
The
information sought in this subpoena is relevant because
identifying the name and address of the defendant will allow
this case to proceed with the service of a Complaint and
summons. “[I]dentifying [the d]efendant is a necessary
step” in making the determination of whether the
defendant is, in fact, “the infringer[.]”
Malibu Media, LLC v. Doe, No. 15-CV-3147, 2016 WL
5478433, at *4 (S.D.N.Y. Sept. 29, 2016) (citations omitted).
Once the plaintiff has the defendant's name and address,
the plaintiff can investigate whether others had access to
the defendant's IP address. As Judge Caproni explained,
once the defendant is served, he may move to dismiss the
case, “if he chooses, in which he can raise the
arguments that he attempts to raise here.” Strike 3
Holdings, 2019 WL 78987, at *3 (citing Fed.R.Civ.P.
12(b)(6)). Thus, the “[d]efendant will be free to argue
that he was not the actual infringer at the appropriate time
in this litigation.” Malibu Media, 2016 WL
5478433, at *4 (citation and internal quotation marks
omitted); see Malibu Media, LLC v. John Doe Subscriber
Assigned to IP Address 24.90.139.137, No. 15-CV-7788
(KMW), 2016 WL 1651869, at *4 (S.D.N.Y. Apr. 26, 2016)
(holding that the “[d]efendant's argument that
another party is responsible for the infringing conduct may
be advanced later as a defense, but it does not constitute a
reason to quash the subpoena, because ‘[o]btaining [the
defendant's] contact information is the logical first
step in identifying the correct party.'” (quoting
Malibu Media, LLC v. Doe, No. 15-CV-1834, 2105 WL
4403407, at *3 (S.D.N.Y. July 20, 2015) (additional citation
omitted)).
The
defendant's privacy claim is also not a ground to quash
this subpoena. The Second Circuit has made clear that an
expectation of privacy for sharing copyrighted material is
“simply insufficient to permit [a defendant] to avoid
having to defend against a claim of copyright
infringement.” Arista Records, LLC v. Doe 3,
604 F.3d 110, 124 (2d Cir. 2010); see also Strike 3
Holdings, 2019 WL 78987, at *4. Stated another way, the
defendant may not “hid[e] behind a shield of
anonymity[]” to avoid defending himself against claims
made by the plaintiff in this case. Arista Records,
604 F.3d at 124.
The
foregoing notwithstanding, just as Judge Caproni noted, this
Court is “not entirely unsympathetic to [the
d]efendant's argument.” Strike 3 Holdings,
2019 WL 78987, at *4. There are dozens of cases filed by
Strike 3 Holdings in this District alone, most of which have
been voluntarily dismissed within weeks or months after the
plaintiff was granted leave to serve a subpoena on the ISP
provider to obtain the IP holder's name and address. This
Court is sensitive to the fact that the sheer volume of cases
commenced by Strike 3 Holdings, and their brief procedural
history - commencement of the action, receipt of permission
to serve a third-party subpoena on an ISP provider prior to
the 26(f) conference, and voluntary dismissal of the actions
weeks or months thereafter - is suggestive of coercive
settlement practices that this Court does not condone.
“[N]umerous district courts in this Circuit” have
noted the “abusive litigation practices” by
“copyright holders such as [the plaintiff in this
case]” who are “repeat litigants.”
Strike 3 Holdings, 2019 WL 78987, at *4 (citing
Digital Sins, Inc. v. John Does 1-245, No.
11-CV-8170 (CM), 2012 WL 1744838, at *3 (S.D.N.Y. May 15,
2012); Malibu Media, LLC v. Doe, No. 15-CV-4369
(AKH), 2015 WL ...