LLC v. Doe

          ORDER DENYING DEFENDANT'S MOTION TO QUASH [DKT. NO. 13]

          Vanessa L. Bryant, United States District Judge.

         I. Introduction

         In this copyright infringement action, Defendant John Doe (“Defendant”) filed a motion to quash a subpoena that Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) served on a third party, Comcast Cable Communications (“Comcast”). Plaintiff served this subpoena pursuant to Federal Rule of Civil Procedure 26, which permits parties to conduct discovery when a court authorizes it by order. Fed.R.Civ.P. 26(d)(1). For the following reasons, Defendant's motion to quash is DENIED.

         II. Background

         Plaintiff is an adult film company that produces, distributes, and licenses adult films. [Dkt. No. 1, ¶ 1]. It distributes its films through adult entertainment websites and DVDs. [Dkt. No. 1, ¶ 3]. It brings this action against the unnamed Defendant and owner of the following IP address: 73.186.90.217. [Dkt. No. 1 (Compl.) ¶ 5]. Plaintiff alleges that Defendant utilized a peer-to-peer file distribution network, BitTorrent, to illegally download and distribute seventy-nine of Plaintiff's copyrighted adult films over quite some time. [Dkt. No. 1, ¶¶ 4, 23-24].

         Plaintiff claims that Defendant can be identified through Defendant's Internet Protocol (IP) address, which Plaintiff represents is 73.186.90.217. [Dkt. No. 1, ¶¶ 5, 8]. Plaintiff represents that its investigators have traced Defendant's IP address to a physical location within the Court's jurisdiction. [Dkt. No. 1, ¶¶ 8-9]. Plaintiff also asserts that Comcast is the Defendant's Internet Service Provider (ISP) and that Comcast can identify Defendant through the IP address. [Dkt. No. 1, ¶ 8]. Accordingly, Plaintiff moved for leave to serve a third-party subpoena on Comcast seeking the name and address associated with the aforementioned IP address prior to the Rule 26(f) conference in this case. See [Dkt. No. 9 (Subpoena Mot.)]. The Court granted Plaintiff's motion on October 9, 2019. See [Dkt. No. 11 (Order Granting Subpoena Mot.)]. In doing so, the Court required that Comcast provide the individual associated with the IP address notice of the subpoena and an opportunity to move to quash the subpoena before responding to it. Id. at 2-3. Comcast did so, and Defendant now moves to quash the subpoena. See [Dkt. No. 13 (Mot. Quash)].

         In the Motion to Quash, Defendant's representatives represent that Defendant passed away in August 2018 after a long illness. Id. at 1. Defendant's representatives assert that it will be impossible to discover who had access to Defendant's IP address and that Defendant's family members have “no knowledge of possible copyright infringements.” [Dkt. No. 13, at 1-2].

         III. Legal Standard

         A subpoena must comply with the requirements of Federal Rules of Civil Procedure 26 and 45. Rule 26(d) permits discovery generally only after a Rule 26(f) discovery conference, “except … when authorized by these rules, by stipulation, or by court order.” Fed.R.Civ.P. 26(d)(1). The United States Court of Appeals for the Second Circuit has held that district courts possess “wide discretion in [their] handling of pre-trial discovery.” In re. Subpoena Issued to Dennis Friedman, 350 F.3d 65, 68 (2d Cir. 2003) (quoting In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir. 1998)) (internal quotation marks omitted).

         As laid out in Arista Records, LLC v. Doe 3, in the Second Circuit, courts employ the following factors in evaluating motions to quash subpoenas to ISPs regarding subscribers who may be engaged in copyright infringement:

(1) the concreteness of the plaintiff's showing of a prima facie claim of actionable harm, (2) the specificity of the discovery request, (3) the absence of alternative means to obtain the subpoenaed information, (4) the need for the subpoenaed information to advance the claim, and (5) the objecting party's expectation of privacy.

Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (quotation marks and citation omitted).

         Additionally, pursuant to Federal Rule of Civil Procedure 45(d)(3), the Court “must quash or modify a subpoena that … requires disclosure of privileged or other protected information, if no exception or waiver applies” or “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3). “Whether a subpoena imposes an ‘undue burden' depends upon ‘such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.'” Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005) (quoting United States v. Int'l Business Machines Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979)).

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