United States District Court, D. Connecticut
ORDER ON MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA AND SECOND 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, 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, ECF No. 10. Strike 3
also moves for an extension of time within which to
effectuate service on Defendant and an extension of pre-trial
deadlines. Second Motion for Extension of Time Within Which
to Effectuate Service on Defendant, ECF No. 13.
As
Plaintiff has established good cause for entry of this order
with respect to service of a third-party subpoena, the Court
GRANTS the motion, subject to the
limitations discussed below. The Court also
GRANTS the motion for an extension of time
within which to effectuate service.
Strike
3 acknowledges the concerns raised by many district courts
around the nation, Pl.'s Mot. to Leave at 3, ECF No.
10-1, 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 sixty (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 sixty (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 sixty (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 sixty-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 ...