Opinion
23 Civ. 10530 (LGS)
01-03-2024
STRIKE 3 HOLDINGS, LLC, Plaintiff, v. JOHN DOE, Defendant.
ORDER
LORNA G. SCHOFIELD, DISTRICT JUDGE
Pursuant to Federal Rule of Civil Procedure 26(d)(1), Plaintiff Strike 3 Holdings, LLC (“Strike 3”) moves for leave to serve a third-party subpoena on Defendant John Doe's Internet Service Provider, Verizon Fios (the “ISP”). Specifically, Strike 3 seeks to serve a subpoena on the ISP in order to ascertain the identity of the John Doe defendant in this case.
Plaintiff has satisfied the requirements for leave to serve a third-party subpoena on an expedited basis. When considering whether to grant a motion for expedited discovery prior to a
Rule 26(f) conference, courts apply a “flexible standard of reasonableness and good cause.” See, e.g., Corey Sipkin Photography LLC v. ABC Corp, No. 23 Civ. 4754, 2023 WL 6881683, at *1 (S.D.N.Y. Oct. 17, 2023); Colds v. Smyth, No. 22 Civ. 2023, 2023 WL 6258544, at *3 (S.D.N.Y. Sept. 26, 2023). The “principal factors” that courts consider when deciding whether expedited discovery is appropriate include: “(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 [defendant's] expectation of privacy.” Arista Recs., LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010); accord Strike 3 Holdings, LLC v. Doe, No. 23 Civ. 5436, 2023 WL 4684207, at *1 (S.D.N.Y. July 21, 2023). Applying that standard confirms that Plaintiff is entitled to a subpoena. In particular, Plaintiff seeks only the true name and permanent address of John Doe, which are a limited set of facts that are highly specific in nature. Moreover, without this discovery, Plaintiff appears unable to ascertain the identity of John Doe or to effect service on him.
There are, however, substantive concerns related to Defendant's privacy given both the nature of the copyrighted material at issue and the risk of a false identification by Defendant's ISP. See Strike 3 Holdings, LLC, 2023 WL 4684207, at *2. Plaintiff does not oppose allowing Defendant to enter into a confidentiality agreement and proceed anonymously toward the resolution of this case.
ORDERED that Plaintiff's motion for leave to file a subpoena under Federal Rule of
Civil Procedure 45 on the ISP in order to obtain Defendant's name and address is GRANTED. Plaintiff is not permitted to subpoena the ISP for Defendant's email address or telephone number. It is further
ORDERED that Defendant may proceed anonymously as John Doe unless and until the Court orders otherwise. It is further
ORDERED that Plaintiff shall not initiate settlement discussions prior to service of the Complaint without leave of Court. Nevertheless, if Defendant initiates such discussions, Plaintiff is permitted to participate and settle the case. It is further
ORDERED that the ISP shall have 60 days from the date of service of the subpoena upon it to serve upon Defendant a copy of the subpoena, a copy of this Order, and a copy of the “Notice to Defendant” attached hereto as Exhibit A. This Order should be attached to the “Notice to Defendant” such that the “Notice of Defendant” is the first page of the materials enclosed with the subpoena. The ISP may serve Defendant 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. It is further
ORDERED that Defendant shall have 60 days from the date of service of the 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). The ISP may not turn over Defendant's identifying information 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, 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. It is further
ORDERED that the subpoenaed entity shall preserve any subpoenaed information pending the resolution of any timely filed motion to quash. It is further
ORDERED that the ISP receiving 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. If the ISP receives a subpoena and elects to charge for costs of production, it shall provide a billing summary and cost report to Plaintiff. It is further
ORDERED that any information ultimately disclosed to Plaintiff in response to the subpoena may be used solely for the purpose of protecting Plaintiff's rights as set forth in its Complaint. It is further
ORDERED that Plaintiff shall file a status letter with the Court by February 16, 2024. It is further
ORDERED that the initial pretrial conference, currently scheduled for January 31, 2024, is hereby adjourned to May 1, 2024, at 4:20 p.m. The parties shall jointly submit the materials described in the Order at Dkt. 6 by April 24, 2024.
The Clerk of Court is directed to close Dkt. No. 9.