Opinion
1:23-cv-00674 (AT)(SDA)
02-21-2023
Strike 3 Holdings, LLC, Plaintiff, v. John Doe, Defendant.
ORDER
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
Many other judges in this District have already addressed the issues raised in Plaintiff's motion at length in other similar cases brought by Plaintiff. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 22-CV-10691 (AKH) (SN), ECF No. 9, 2023 U.S. Dist. LEXIS 13737 (S.D.N.Y. Jan. 26, 2023); Strike 3 Holdings, LLC v. Doe, No. 22-CV-3848 (MKV), ECF No. 14, 2023 U.S. Dist. LEXIS 10316 (S.D.N.Y. Jan. 19, 2023); Strike 3 Holdings, LLC v. Doe, No. 22-CV-04668 (MKV), ECF No. 13, 2023 U.S. Dist. LEXIS 9661 (S.D.N.Y. Jan. 19, 2023); Strike 3 Holdings, LLC v. Doe, No. 22-CV-10694 (LJL), ECF No. 8, 2023 U.S. Dist. LEXIS 2756 (S.D.N.Y. Jan. 6, 2023); Strike 3 Holdings, LLC v. Doe, No. 22-CV-09592 (VSB), ECF No. 8, 2022 U.S. Dist. LEXIS 209642 (S.D.N.Y. Nov. 18, 2022).
On February 21, 2023, Strike 3 Holdings, LLC (“Strike 3 Holdings” or “Plaintiff”), filed a motion, ex parte, for leave to file a third-party subpoena on Defendant John Doe's Internet Service Provider (“ISP”), Verizon Fios, in advance of the conference mandated by Rule 26(f) of the Federal Rules of Civil Procedure. (ECF No. 9.) Through the third-party subpoena, Plaintiff seeks to identify the name and address associated with an identified Internet Protocol (“IP”) address that Plaintiff alleges was used to infringe its copyrights. (Id.)
This Court similarly finds that Plaintiff has established good cause to serve a third-party subpoena on Defendant's ISP and to do so prior to a Rule 26(f) conference.
In particular, the Court finds that (1) Plaintiff has made out a prima facie claim of copyright infringement, (2) Plaintiff seeks limited and specific facts, namely the true name and address of John Doe, (3) Plaintiff appears to have no alternative means of obtaining the identity of the alleged infringer, and (4) the information Plaintiff seeks is necessary to advance its claim. See Arista Records LLC v. Doe, 604 F.3d 110, 119 (2d Cir. 2010) (identifying “principal factors” for District Courts to consider when determining whether expedited discovery is appropriate).
The Court also finds, however, that there are substantial concerns related to Defendant's privacy given the nature of the copyrighted material at issue and the risk of a false identification by Defendant's ISP. See id. (identifying privacy as principal factor to consider); see also Malibu Media, LLC v. Doe, No. 12-CV-2955 (PAE), 2012 U.S. Dist. LEXIS 107131, 2012 WL 3104887, at *3 (S.D.N.Y. July 31, 2012) (noting the risks of a “false positive” identification and the resulting undue annoyance or embarrassment to a non-culpable party). Thus, the Court grants Plaintiff's Motion, subject to the provisions below.
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Plaintiff may not initiate settlement discussions before service of the Complaint without leave of this Court. Nevertheless, if Defendant initiates such discussions, Plaintiff is permitted to participate therein and settle the case.
2. The Defendant may proceed anonymously as John Doe in this action unless and until the Court orders otherwise.
3. Within 14 days of the date of this Order, Plaintiff may serve a Rule 45 subpoena on
the ISP seeking only the name and address of the Defendant to whom the ISP assigned the IP address set forth in the Complaint in this action. Plaintiff is not permitted to subpoena the Defendant's telephone number or email address. The subpoena shall attach a copy of this Order, along with the attached “Notice to Defendant.” Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any ISP that is identified in response to a subpoena as a provider of internet services to the Defendant.
4. The ISP shall have 60 days from the date of service of the Rule 45 subpoena and this Order upon it to serve Defendant with a copy of the subpoena, a copy of this Order, and a copy of the attached “Notice to Defendant.” The ISP may serve Defendant using any reasonable means, such as written notice to a last known address, transmitted either by first-class mail or via overnight service.
5. Defendant shall have 60 days from the date of service of the Rule 45 subpoena and this Order upon her or him to file any motion with this Court contesting the subpoena (including a motion to quash or to modify the subpoena). The ISP may not turn over Defendant's information to Plaintiff prior to the close of this 60-day period. Additionally, if Defendant or the ISP files a motion to quash the subpoena, the ISP may not turn over any information to Plaintiff until the issue has been resolved and the Court has issued an order instructing the ISP to resume in turning over the requested discovery.
6. If that 60-day period closes without Defendant or the ISP contesting the subpoena, the ISP shall then have 10 days to produce the information responsive to the
subpoena to Plaintiff. If Defendant moves to quash or to modify the subpoena, he or she shall, at the same time as his or her filing, notify the ISP so the ISP is on notice not to release Defendant's information to Plaintiff until the Court rules on any such motion.
7. The ISP shall preserve any subpoenaed information pending the resolution of any timely filed motion to quash.
8. An ISP that receives a subpoena pursuant to this Order shall confer with Plaintiff and shall not assess any charge in advance of providing the information requested in the subpoena. An ISP that receives a subpoena and elects to charge for the costs of production shall provide a billing summary and cost report to Plaintiff.
9. Any information ultimately disclosed to Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff solely for the purpose of protecting its rights as set forth in its Complaint.
Plaintiff is further directed to file a status letter with the Court on Monday, April 24, 2023.
SO ORDERED.