United States District Court, D. Connecticut
ORDER GRANTING MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE
MICHAEL P. SHEA UNITED STATES DISTRICT JUDGE
This
case is one of over one hundred cases brought in this
District since 2017 by the Plaintiff, Strike 3 Holdings, LLC,
(“Strike 3”) against a “John Doe”
defendant identified only by his or her Internet Protocol
(“IP”) address. Each case follows a similar
pattern. Strike 3 alleges that the defendant committed
copyright infringement by downloading and distributing
plaintiff's adult films using BitTorrent, a peer-to-peer
file distribution network. (See Complaint, ECF No.
1.) It then moves pursuant to Fed R. Civ. P. 26(d)(1) for
leave to serve a third-party subpoena on defendant's
internet service provider (“ISP”) before any Rule
26(f) conference for the limited purpose of discovering
defendant's identity. (See Motion for Leave to
Serve Third Party Subpoena, ECF No. 8.) The motion is granted
as a matter of course. See, e.g., Strike 3
Holdings, LLC v. Doe, No. 3:18-cv-1332-CSH, 2018 WL
4846676 (D. Conn. Oct. 5, 2018) (citing Arista Records,
LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010).
Additional conditions are often imposed to protect the
Defendant's privacy. See, e.g., Order Granting
Motion for Third Party Subpoena, Strike 3 Holdings, LLC
v. Doe, No. 3:18-cv-01555-MPS (D. Conn. Oct. 16, 2018),
ECF No. 9; Order Granting Motion for Third Party Subpoena,
Strike 3 Holdings, LLC v. Doe, No. 3:18-cv-00988-JBA
(D. Conn. Jul. 10, 2018), ECF No. 10. After one or more
extensions of the pre-trial deadlines, Strike 3 files a
notice of voluntary dismissal pursuant to Fed.R.Civ.P.
41(a)(1)(A)(i).[1] The merits of the claims are not
litigated, and the Court lacks any opportunity to determine
whether the third-party subpoena procedures are fairly
implemented and effective to protect the privacy interests of
defendants identified by their ISPs.
Courts
around the nation have expressed increasing concerns that,
given the nature of the films at issue, defendants may feel
coerced to settle these suits merely to prevent public
disclosure of their identifying information, even if they
believe they have been misidentified. See, e.g.,
Strike 3 Holdings, LLC v. Doe, No. 2:18-cv-00824-CB,
2018 WL 3688415, at *1 n.2 (W.D. Pa. Aug. 3, 2018) (“Of
particular concern is the possibility that the names and
addresses that the service providers will connect to the IP
addresses identified in the complaint may not be those of the
individuals who actually downloaded the film.”);
Strike 3 Holdings, LLC v. Doe, No. 18-cv-2648-VEC,
2019 WL 78987, at *4 (S.D.N.Y. Jan. 2, 2019) (“As
numerous district courts in this Circuit have pointed out,
copyright holders such as Plaintiff are repeat litigants who
have, in the past, engaged in ‘abusive litigation
practices,' including coercive settlement
practices.”); Strike 3 Holdings, LLC v. Doe,
No. 1:18-cv-2205-RC-GMH, 2018 WL 5297816, at *2 (D.D.C. Oct.
25, 2018) (“[T]here is a real risk that a defendant
might be falsely identified and forced to defend themselves
against unwarranted allegations or that an innocent defendant
may be coerced into an unjust settlement with the plaintiff
to prevent the dissemination of publicity surrounding
unfounded allegations.”) (internal quotation marks and
alterations omitted).
At
least one district court recently concluded that the
“geolocation technology” that Strike 3 uses to
identify alleged-infringers' IP addresses, (See
Compl., ECF No. 1 ¶ 9), is too imprecise to identify the
particular individual who downloaded or distributed the
content in question. See Strike 3 Holdings, LLC v.
Doe, 351 F.Supp.3d 160, 162 (D.D.C. 2018) (“This
[geolocation] method is famously flawed: virtual private
networks and onion routing spoof IP addresses (for good and
ill); routers and other devices are unsecured; malware cracks
passwords and opens backdoors; multiple people (family,
roommates, guests, neighbors, etc.) share the same IP
address; a geolocation service might randomly assign
addresses to some general location if it cannot more
specifically identify another.”). As a result, the
court found that there was a serious risk of
misidentification and that the defendant's privacy
interest outweighed Strike 3's need for early discovery.
Id. at 162. The court therefore denied Strike
3's motion for leave to file a third-party subpoena and
dismissed the case sua sponte because, without the
subpoena, Strike 3 would be unable to name and serve the
person alleged to have infringed its copyrights. See
Id. at 165-66 (“Armed with hundreds of
cut-and-pasted complaints and boilerplate discovery motions,
Strike 3 floods this courthouse (and others around the
country) with lawsuits smacking of extortion. It treats this
Court not as a citadel of justice, but as an ATM. Its feigned
desire for legal process masks what it really seeks: for the
Court to oversee a high-tech shakedown. This Court
declines.”).
I do
not find that such extreme measures are necessary here. It is
true 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.” Strike
3 Holdings, LLC v. Doe, No. 3:18-cv-1945-JBA-RMS, 2019
WL 1122984, at *3 (D. Conn. Mar. 12, 2019). But Strike 3
should not be prevented from protecting its copyrighted
material from infringement solely because it is
possible to view its past litigation practices as
problematic, particularly where there is no evidence
suggesting that Strike 3 has acted in bad faith in any case
in this district. I find that the plaintiff has established
that there is good cause to permit early discovery. The
plaintiff has shown: (1) a prima facie case of copyright
infringement by “alleging unlawful downloading,
copying, and distribution of this work by specifying the type
of technology used, the IP address from which the file was
accessed and shared, and the date and time of infringement,
” Malibu Media, LLC v. Doe, No.
14-cv-4808-JS-SIL, 2016 WL 4574677, at *6 (E.D.N.Y. Sept. 1,
2016), (2) that the subpoena is limited and only seeks
“concrete and narrow information: the name and address
of the subscriber associated with [the defendant's] IP
address[, ]” John Wiley & Sons, Inc. v.
Doe, 284 F.R.D. 185, 190 (S.D.N.Y. 2012); and (3) that,
because the internet service provider is the only entity that
can identify a subscriber's identity with an IP address,
there is “good cause to allow for [the] early
discovery” of subpoenaing the ISP. Next Phase
Distribution, Inc. v. John Does, 1-27, 284 F.R.D. 165,
171-72 (S.D.N.Y. 2012).
In
light of experiences in this district, however, I find it
necessary to impose additional conditions to protect the
Defendant's privacy and ensure that the discovery process
does not enable the plaintiff to engage in coercive
settlement practices. In particular, this Court has granted
dozens of motions filed by Strike 3 for leave to serve a
third-party subpoena on defendants' ISPs. In nearly every
case, Strike 3 has filed a notice of voluntary dismissal
before any defendant appeared to answer the complaint or
litigate the accuracy of Strike 3's geolocation
techniques.[2] Accordingly, the motion to serve a
third-party subpoena on the Defendant's ISP is GRANTED
subject to the following conditions:
1.
Plaintiff may immediately serve a Rule 45 subpoena on
defendant John Doe'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.
2.
Because defendant John Doe is not necessarily the person who
allegedly infringed, given the non-remote possibility that
users other than the subscriber have used the IP address in
question, 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 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.
3.
Defendant's ISP will have 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.
4.
Defendant John Doe shall have 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 60-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.
5.
Plaintiff may only use the defendant's name and address,
if obtained by defendant's ISP, for the purposes of this
litigation. Plaintiff is ordered not to disclose the
defendant's name or address, or any other identifying
information other than defendant's ISP number that
Plaintiff may subsequently learn. ...