United States District Court, D. Connecticut
ORDER RE:  MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA PRIOR TO RULE 26(f) CONFERENCE
A. DOOLEY, UNITED STATES DISTRICT JUDGE.
Strike 3 Holdings, LLC (the “Plaintiff”) alleges
that defendant John Doe, identified only by an 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 March 13, 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. 3.
Court first observes, however, that although the information
sought may be probative of the John Doe Defendant's
identity, it is not, by any means, conclusive on the issue.
Indeed, the ISP subscriber may, or may not, be the individual
who purportedly infringed the Plaintiff's copyright.
Accordingly, the Court's reference to “the
Defendant” in the orders that follow should not be
construed as a determination by this Court that the
subscriber to the IP Address identified in the caption is, in
fact, the purported infringer.
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).
receiving the subpoenaed information, the Plaintiff shall not
initiate settlement discussions with the Defendant prior to
effectuating service upon the Defendant and the filing of
proof of such service. 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
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
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
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 ...