United States District Court, D. Connecticut
RULING ON MOTION TO QUASH (DOC. NO. 10)
M. Spector, United States Magistrate Judge.
January 24, 2019, Strike 3 Holdings, LLC (“Strike
3” or “the plaintiff') commenced this action
against John Doe, a subscriber of IP address 220.127.116.11
(“Doe” or “the defendant”). (Doc. No.
1). The plaintiff claims to be 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. 10). For the reasons set forth below, the
defendant's Motion to Quash (Doc. No. 10) is DENIED, but
the plaintiff is ordered to revise the subpoena to include
additional conditions, as detailed below.
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.
8, 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 alleged infringers to
distribute copyrighted works within the BitTorrent File
Distribution Network. (Doc. No. 8, Declaration of Tobias
Fieser (“Fieser Decl.”) ¶ 5). IPP discovered
that the defendant's IP address was illegally
distributing several of Strike 3's motion pictures. (Doc.
No. 8, Fieser Decl. ¶ 7). As developed by the United
States National Security Agency, digital files can be
identified by a “Crytographic Hash Value.” (Doc.
No. 8, 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.
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. 8, 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. 8, 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. 8, Stalzer Decl. ¶ 11).
3 then retained a technology advisor to analyze individually
and retain forensic evidence captured by IPP. (Doc. No. 8,
Declaration of Philip Pasquale (“Pasquale Decl.”)
¶ 6). That advisor confirmed that the IPP recorded a
transaction occurring on November 23, 2018, with the IP
address 18.104.22.168. (Doc. No. 8, Pasquale Decl.
¶¶ 7, 9). Based on the experience of that advisor
in similar cases, he claims that the defendant's ISP,
Spectrum, is the only entity that can correlate the IP
address to its subscriber and identify the defendant as the
person assigned to IP address 22.214.171.124 during the time
of the alleged infringement. (Doc. No. 8, Pasquale Decl.
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. 8). 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. 9). The plaintiff served the subpoena on the
defendant's ISP, and this motion to quash by the
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[.]”).
defendant objects to Strike 3's subpoena to Spectrum on
the basis that the defendant, who is a subscriber assigned IP
Address 126.96.36.199, is “simply an I.T. services
company, procuring internet services on behalf of the
company's clients who are the actual end users of the
internet service.” (Doc. No. 10 at 1). The defendant
argues that it is “not the end user of the service but
simply a reseller” and “is not the entity [the
plaintiff is] seeking.” (Doc. No. 10 at 1).
plaintiff appropriately observes that the defendant has
offered no evidence to support this proposition. Moreover, as
discussed above, Strike 3's technology advisor, who has
analyzed individually and retained forensic evidence captured
by IPP, confirmed that IPP recorded a transaction evidencing
alleged infringement on November 23, 2018, with the defendant
IP address 188.8.131.52. (Doc. No. 8, Pasquale Decl.
¶¶ 6, 7, 9). Even if the defendant is another ISP,
the defendant does hold relevant information about the
alleged infringing IP address. 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)).
information sought in this subpoena is relevant because
identifying the name and address of the defendant subscriber
assigned IP address 184.108.40.206 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).
As United States District Judge Valerie Caproni explained in
another Strike 3 Holdings case, 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, LLC v. Doe,
18 CV 2648 (VEC), 2019 WL 78987, at *3 (S.D.N.Y. Jan. 2,
2019) (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 220.127.116.11, 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
“whether [the] [d]efendant has meritorious defenses to
[the [p]laintiff's claims is not relevant for purposes of
the instant motion to quash or [the] [p]laintiff's
ability to obtain the discovery sought in the . . .
Subpoena.” See Malibu Media, LLC v. Doe, No.
14-CV-4808 (JS)(SIL), 2016 WL 4574677, at *6 (E.D.N.Y. Sept.
1, 2016) (collecting cases)). A subpoena may not be quashed
on grounds that the information sought goes to the
“merits” of the party's case. Strike 3
Holdings, 2019 WL 78987, at *2 (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)).
defendant also contends that Connecticut General Statute
§ 42-471(a) prevents it from disclosing the requested
information. This Court disagrees. Section 42-471(a) states,
in relevant part, that, “[a]ny person in possession of
personal information of another person shall safeguard the
data, computer files and documents containing the information
from misuse by third parties ….” The defendant
argues that this provision “clearly imposes upon [the
defendant] in this case a duty to safeguard the personal
information of the end user or else be subject to ...