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LLC v. Doe

United States District Court, S.D. New York

January 16, 2020

STRIKE 3 HOLDINGS, LLC, Plaintiff,
v.
JOHN DOE, subscriber assigned to IP address 184.153.15.9, Defendant.

          ORDER

          PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE

         The Court has reviewed Strike 3 Holdings, LLC's (“Strike 3”) motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference, Dkt. 6, and the accompanying memorandum of law, Dkt. 7. Strike 3 has filed many other applications for third-party subpoenas in factually similar cases, and every judge in this District to address such an application has granted it.[1] For the reasons outlined in Strike 3's memorandum, the Court grants Strike 3 leave to file a third-party subpoena on Defendant's ISP in order to obtain Defendant's identity. Strike 3 is not permitted to subpoena the ISP for Defendant's email address or telephone number.

         Because of the risk of false identification from Defendant's IP address and the nature of the copyrighted material at issue, the Court recognizes that Defendant has substantial privacy interests. As a result, the Court orders the following:

1. It is ORDERED that Defendant may proceed anonymously as John Doe unless and until the Court orders otherwise, subject to the conditions described in the “Notice to Defendant, ” which is attached as Exhibit A to this Order.
2. It is therefore further ORDERED that Strike 3 shall not initiate settlement discussions prior to service of the Complaint without leave of Court. Nevertheless, if Defendant initiates such discussions, Strike 3 is permitted to participate therein and to settle the case.
3. It is further ORDERED that the ISP shall have 60 days from the date of service of the Rule 45 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. The Order should be attached to the “Notice to Defendant” such that the “Notice to 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.
4. It is further ORDERED that Defendant 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). The ISP may not turn over Defendant's identifying information to Strike 3 before the expiration of this 60-day period. Additionally, if Defendant or his ISP files a motion to quash or modify the subpoena, the ISP may not turn over any information to Strike 3 until the issues have been addressed and the Court issues an order instructing the ISP to resume in turning over the requested discovery.
5. It is further ORDERED that the subpoenaed entity shall preserve any subpoenaed information pending the resolution of any timely filed motion to quash.
6. It is further ORDERED that the ISP receiving a subpoena pursuant to this Order shall confer with Strike 3 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 Strike 3 with a billing summary and cost report.
7. It is further ORDERED that any information ultimately disclosed to Strike 3 in response to a Rule 45 subpoena may be used solely for the purpose of protecting Strike 3's rights as set forth in its Complaint.
8. It is further ORDERED that Strike 3's time to serve the Summons and Complaint on Defendant is extended to 45 days after Strike 3 receives the information from the ISP pursuant to subpoena.
9. Finally, it is hereby ORDERED that Strike 3 shall submit to the Court, every 60 days from the Date of this Order until Defendant files an answer or otherwise responds to the Complaint, a status update in the form of a letter of not more than two pages. The status letter must describe Strike 3's effort to obtain the necessary information from the ISP and to serve Defendant. Failure to submit such letters in a timely manner may result in dismissal of this action for failure to prosecute.

         The Clerk of Court is directed to terminate the motion ...


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