`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`Plaintiff,
`
`-------------------------------------------------------------- X
`
`STRIKE 3 HOLDINGS, LLC,
`:
`
`:
`:
`:
`:
`:
`:
`:
`:
`Defendant.
`:
`
`-------------------------------------------------------------- X
`
`-against-
`
`
`JOHN DOE, subscriber assigned IP address
`24.104.252.172,
`
`
`
`
`
`
`
`
`
`
`
`18-CV-2648 (VEC)
`
`MEMORANDUM
`OPINION AND ORDER
`
`
`
`
`
`
`
`
`
`
`
`
`
`VALERIE CAPRONI, United States District Judge:
`
`Plaintiff Strike 3 Holdings, LLC has sued Defendant John Doe, who has been identified
`
`only by his alleged Internet Protocol (“IP”) address, 24.104.252.172, for direct copyright
`
`infringement pursuant to the Copyright Act, 17 U.S.C. § 101 et seq. See Compl., Dkt. 1.
`
`Defendant moves to quash a third-party subpoena that Plaintiff has served on Defendant’s
`
`Internet Service Provider (“ISP”) in order to obtain Defendant’s name and address. See Def.’s
`
`Notice of Mot., Dkt. 16. For the following reasons, Defendant’s motion to quash is DENIED.1
`
`BACKGROUND
`
`Plaintiff holds the copyrights for numerous “adult motion pictures,” which Plaintiff
`
`distributes through subscription-based websites and DVDs. See Compl. ¶¶ 2, 13. Plaintiff
`
`alleges that Defendant has downloaded and distributed portions of at least 23 of Plaintiff’s
`
`motion pictures. See id. ¶¶ 4, 25, 36; Declaration of Tobias Fieser (“Fieser Decl.”), Dkt. 7,
`
`Ex. B, ¶ 7. Plaintiff alleges that these works are registered with the United States Copyright
`
`Office and that Defendant obtained and distributed them without Plaintiff’s authorization. See
`
`
`1
`Plaintiff also moves for leave to file a sur-reply in further opposition to Defendant’s motion to quash.
`See Pl.’s Ltr. Mot. (Nov. 27, 2018), Dkt. 23. Because the Court would deny Defendant’s motion to quash regardless
`of Plaintiff’s sur-reply, the Court need not decide whether a sur-reply is appropriate.
`
`1
`
`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #:
`
`
`
`DATE FILED:
`
`
`
`1/2/2019
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 2 of 9
`
`Compl. ¶¶ 31, 37. According to Plaintiff, Defendant downloaded and distributed the works
`
`through the BitTorrent platform, a “peer-to-peer” system that enables users to transmit digital
`
`files directly to and from one another. See id. ¶¶ 4, 17, 23, 27.
`
`Plaintiff has identified Defendant only through his IP address. See id. ¶ 5. Plaintiff
`
`alleges that its investigator, IPP International U.G. (“IPP”), established contact with Defendant’s
`
`IP address through the BitTorrent system and downloaded from that IP address several digital
`
`movie files. See id. ¶¶ 24–25; Fieser Decl. ¶¶ 7–9. One of Plaintiff’s employees subsequently
`
`viewed the downloaded movie files side-by-side with Plaintiff’s copyrighted movies and
`
`determined that the two sets of works were “identical, strikingly similar, or substantially
`
`similar.” Declaration of Susan B. Stalzer (“Stalzer Decl.”), Dkt. 7, Ex. D, ¶¶ 7–10. IPP also
`
`determined “through its ancillary worldwide BitTorrent surveillance program” that Defendant’s
`
`address “is associated with significant long-term BitTorrent use.” Fieser Decl. ¶ 12.
`
`Because Plaintiff can identify Defendant only through his IP address, Plaintiff previously
`
`moved this Court for leave to subpoena Defendant’s name and address from his ISP in advance
`
`of a Rule 26(f) conference, pursuant to Federal Rule of Civil Procedure 26(d)(1). See Pl.’s
`
`Notice of Mot., Dkt. 6. The Court granted Plaintiff’s motion to serve the subpoena and imposed
`
`several conditions as part of a protective order. Those conditions include that: Defendant can
`
`proceed anonymously in this action as “John Doe” until the Court orders otherwise; Plaintiff may
`
`not initiate settlement discussions with Defendant prior to service of the Complaint; Plaintiff’s
`
`subpoena may seek only the name and address of Defendant (not Defendant’s telephone number
`
`or email address); and if Defendant moves to quash the subpoena, Defendant’s ISP may not
`
`disclose Defendant’s name and address to Plaintiff until the motion to quash is resolved.
`
`See Order (June 26, 2018), Dkt. 10.
`
`2
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 3 of 9
`
`Plaintiff served the subpoena on Defendant’s ISP on June 29, 2018. See Reply Decl. of
`
`Randall L. Rasey (“Rasey Reply Decl.”), Dkt. 21, Ex. K. On September 26, 2018, Defendant
`
`moved to quash the subpoena. See Def.’s Notice of Mot., Dkt. 16.
`
`DISCUSSION
`
`Federal 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). Pursuant to
`
`Rule 45(d), the subpoena recipient may move to quash or modify the subpoena if the subpoena
`
`“(i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the
`
`geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other
`
`protected matter, if no exception or waiver applies; or (iv) subjects a person to undue
`
`burden.” Fed. R. Civ. P. 45(d)(3)(A)(i)–(iv). “[T]he burden of persuasion in a motion
`
`to quash a subpoena . . . is borne by the movant.” Concord Boat Corp. v. Brunswick Corp., 169
`
`F.R.D. 44, 48 (S.D.N.Y. 1996); see also John Wiley & Sons, Inc. v. Doe Nos. 1–30, 284 F.R.D.
`
`185, 189 (S.D.N.Y. 2012). The same standards apply when a person other than the subpoena
`
`recipient moves to quash the subpoena. See Malibu Media, LLC v. Doe, No. 15-CV-3504, 2016
`
`WL 4444799, at *5–6 (E.D.N.Y. Aug. 23, 2016) (collecting cases).
`
`Defendant’s primary ground for quashing Plaintiff’s subpoena is that Plaintiff has not
`
`“alleged a sufficient link between Defendant and the IP address at issue.” Def.’s Mem. of Law,
`
`Dkt. 18, at 9 (quoting Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address
`
`73.225.38.130, No. 17-CV-01731, Minute Order (W.D. Wash. June 6, 2018)). Specifically,
`
`Defendant argues that other individuals could have used his IP address to download Plaintiff’s
`
`copyrighted movies without Defendant’s knowledge and that Plaintiff has offered no allegations
`
`to exclude this possibility. See id. Thus, Defendant argues, because Plaintiff has failed to state a
`
`3
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 4 of 9
`
`plausible claim for relief that would withstand a motion to dismiss, Plaintiff’s subpoena should
`
`be quashed. See id. at 9–10.
`
`Defendant’s arguments are not appropriately considered at this juncture. It is well-
`
`established that “the merits of [a party’s] case are not relevant to the issue of whether [the
`
`party’s] subpoena is valid and enforceable.” Achte/Neunte Boll Kino Beteiligungs Gmbh & Co.
`
`v. Does 1–4577, 736 F. Supp. 2d 212, 215–16 (D.D.C. 2010); 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). Rather, a subpoena may seek any information that is “relevant to [a]
`
`party’s claim or defense,” regardless of the merits of those claims or defenses. Fed. R. Civ. P.
`
`26(b)(1); see also Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y. 2010); During v. City
`
`Univ. of New York, No. 05-CV-6992, 2006 WL 2192843, at *2 (S.D.N.Y. Aug. 1, 2006); 9
`
`Moore’s Federal Practice: Civil § 45.03 (2018). Put differently, a subpoena may seek
`
`information on “any matter that bears on, or that reasonably could lead to other matter that could
`
`bear on any issue that is or may be in the case.” Liberty Mut. Ins. Co. v. Kohler Co., No. 08-CV-
`
`867, 2010 WL 1930270, at *1 (E.D.N.Y. May 11, 2010) (quoting Oppenheimer Fund, Inc. v.
`
`Sanders, 437 U.S. 340, 351 (1978)); see also MacCartney v. O’Dell, No. 14-CV-3925, 2018 WL
`
`5023947, at *2 (S.D.N.Y. Oct. 17, 2018) (“It is well-established within this Circuit that the rule
`
`of discovery will be satisfied if there is ‘any possibility’ that the information sought to be
`
`obtained may be relevant to the subject matter of the action.” (quoting Daval Steel Prods. v. M/V
`
`Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991))); 6 Moore’s Federal Practice: Civil § 26.42
`
`4
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 5 of 9
`
`(“[D]iscovery should ordinarily be allowed under the concept of relevancy unless it is clear that
`
`the information sought has no possible bearing on claims and defenses of the parties.”).
`
`Applying these principles, Plaintiff’s subpoena clearly seeks relevant information. First,
`
`obtaining Defendant’s name and address will enable Plaintiff to serve Defendant with the
`
`Complaint and a summons. That, in turn, will allow Defendant to file a motion to dismiss, if he
`
`chooses, in which he can raise the arguments that he attempts to raise here. See Fed. R. Civ. P.
`
`12(b)(6). Additionally, obtaining Defendant’s name and address will allow Plaintiff to
`
`investigate whether individuals other than Defendant had access to Defendant’s IP address. As
`
`another court in this District stated when addressing a similar argument:
`
`To be sure, there is a “risk of false positives,” in that [Plaintiff] cannot say with certainty
`that Defendant was the infringer, but identifying Defendant is a necessary step in making
`that determination. And as other courts have recognized, Defendant will be free to argue
`that he was not the actual infringer at “the appropriate time” in this litigation.
`
`Malibu Media, LLC v. Doe, No. 15-CV-3147, 2016 WL 5478433, at *4 (S.D.N.Y. Sept. 29,
`
`2016) (citations omitted) (quoting Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241
`
`(S.D.N.Y. 2012), and Malibu Media, LLC v. Doe, No. 15-CV-2624, 2015 WL 6116620, at *4
`
`(S.D.N.Y. Oct. 16, 2015)). Following this reasoning, district courts in this Circuit have
`
`repeatedly allowed copyright holders to subpoena ISPs to obtain the identity of the subscriber of
`
`an IP address associated with infringing activity. See, e.g., id. at *4; Malibu Media, LLC v. Doe,
`
`No. 14-CV-4808, 2016 WL 4574677, at *6 (E.D.N.Y. Sept. 1, 2016) (“[W]hether Defendant
`
`ultimately has meritorious defenses to Plaintiff’s claims is not relevant for purposes of the instant
`
`motion to quash or Plaintiff’s ability to obtain the discovery sought in the . . . Subpoena.”
`
`(collecting cases)); Malibu Media, LLC v. Doe, No. 15-CV-3504, 2016 WL 4444799, at *8
`
`(E.D.N.Y. Aug. 23, 2016) (“[T]he possibility that a third party downloaded and distributed the
`
`copyrighted works, as opposed to the Internet subscriber himself, does not preclude a finding that
`
`5
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 6 of 9
`
`the plaintiff has established a prima facie claim of copyright infringement.” (collecting cases));
`
`Malibu Media, LLC v. John Doe Subscriber Assigned IP Address 24.90.139.137, No. 15-CV-
`
`7788, 2016 WL 1651869, at *4 (S.D.N.Y. Apr. 26, 2016) (“Defendant’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 [Defendant’s] contact
`
`information is the logical first step in identifying the correct party.’” (quoting Malibu Media,
`
`LLC v. Doe, No. 15-CV-1834, 2015 WL 4403407, at *3 (S.D.N.Y. July 20, 2015))); Malibu
`
`Media, LLC v. Doe, No. 15-CV-2624, 2015 WL 6116620, at *2 (S.D.N.Y. Oct. 16, 2015);
`
`Malibu Media, LLC v. John Does 1–11, No. 12-CV-3810, 2013 WL 3732839, at *6 (S.D.N.Y.
`
`July 16, 2013).
`
`Defendant points to a case recently decided by the Ninth Circuit, Cobbler Nevada, LLC v.
`
`Gonzalez, that he asserts supports his position that the subpoena should be quashed. See Def.’s
`
`Mem. of Law at 3 (citing Cobbler Nevada, LLC v. Gonzalez, 901 F.3d 1142 (9th Cir. 2018)). In
`
`that case, a copyright holder sued for infringement but offered no evidence that the defendant
`
`was the infringer other than the fact that the defendant was the registered subscriber of an IP
`
`address associated with infringing activity. See Cobbler Nevada, 901 F.3d at 1145. The district
`
`court dismissed the complaint for failure to state a claim, and the Ninth Circuit affirmed, holding
`
`that a defendant’s “status as the registered subscriber of an infringing IP address, standing alone,
`
`does not create a reasonable inference that he is also the infringer,” because other individuals
`
`could have used the IP address. Id.2 The district court, however, considered this argument in the
`
`context of a motion to dismiss, not a motion to quash a subpoena. See id. In fact, prior to ruling
`
`on the motion to dismiss, the district court allowed the plaintiff to subpoena the defendant’s ISP
`
`
`2
`In particular, the court noted that the IP address, while registered in the defendant’s name, was the internet
`service of an adult care home, where numerous residents and visitors had access to it. See 901 F.3d at 1145.
`
`6
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 7 of 9
`
`to obtain the defendant’s name—just as Plaintiff has done here. See id. Accordingly, following
`
`Cobbler Nevada, district courts in the Ninth Circuit have continued to allow plaintiffs to
`
`subpoena ISPs for defendants’ contact information, reasoning that the defendants’ defenses to
`
`the claims are more properly resolved during a later-stage motion to dismiss. See, e.g., Strike
`
`3 Holdings, LLC v. Doe (70.95.96.208), No. 18-CV-2720, 2018 WL 6649504, at *3 (S.D. Cal.
`
`Dec. 18, 2018); Pl.’s Resp. Mem. of Law, Dkt. 19, Ex. A (citing Strike 3 Holdings, LLC v. John
`
`Doe subscriber assigned IP address 67.170.214.219, No. 18-cv-02019, Doc. 29, at 6 (N.D. Cal.
`
`Sept. 14, 2018)).3
`
`Defendant also argues that Plaintiff’s subpoena would unfairly intrude on his reasonable
`
`expectation of privacy in the legitimate use of the internet. See Def.’s Mem. of Law at 8; Def.’s
`
`Reply Mem. of Law at 2. The Court disagrees. “The privacy claimed here is not for the
`
`information that the computer owner or user wishes to share but rather for his or her identity.”
`
`Arista Records, 604 F.3d at 124 (2d Cir. 2010). Under the law of this Circuit, Defendant’s
`
`privacy interest in withholding his identity from Plaintiff is not sufficient “to permit him to avoid
`
`having to defend against a claim of copyright infringement.” Id.
`
`This principle applies with added force here, inasmuch as Defendant allegedly used his IP
`
`address to share files via a peer-to-peer platform. Following the Second Circuit’s lead, numerous
`
`courts in this District have held that “ISP subscribers have a minimal expectation of privacy in
`
`
`3
`Defendant also argues that another court in this District has repeatedly denied subpoenas to copyright
`holders on the ground that their complaints failed to raise a plausible inference that the defendant was the infringer.
`See Def.’s Mem. of Law at 9 (citing Malibu Media, LLC v. Doe, No. 15-CV-4369, 2015 WL 4092417, at *4
`(S.D.N.Y. July 6, 2015)); Rasey Reply Decl. Exs. F, G, H (citing Strike 3 Holdings, LLC v. Doe (108.46.43.152),
`No. 17-CV-8956, Dkt. 9 (S.D.N.Y. Mar. 8, 2018); Strike 3 Holdings, LLC v. Doe (68.173.176.105), No. 18-CV-
`5588, Dkt. 8 (S.D.N.Y. July 24, 2018); Strike 3 Holdings, LLC v. Doe (74.72.254.183), No. 18-CV-5592, Dkt. 8
`(July 24, 2018)). This Court does not find those cases to be persuasive. This Court concurs with the vast
`preponderance of authority that holds that the merits of a plaintiff’s case should not be considered in the context of a
`motion to quash a subpoena.
`
`
`7
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 8 of 9
`
`the sharing of copyrighted material.” E.g., Strike 3 Holdings, LLC v. Doe, No. 18-CV-2651,
`
`2018 WL 2229124, at *3 (S.D.N.Y. Apr. 25, 2018) (quoting Malibu Media, LLC v. John Does 1-
`
`11, 2013 WL 3732839, at *6). In any event, the Court has already ordered that Defendant may
`
`proceed anonymously in this lawsuit until the Court orders otherwise, see Order (June 26, 2018),
`
`and that order remains in effect.4
`
`All of this being said, the Court is not entirely unsympathetic to Defendant’s argument.
`
`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. Digital Sins, Inc. v. John Does 1–245, No. 11-CV-8170, 2012 WL
`
`1744838, at *3 (S.D.N.Y. May 15, 2012); see also Declaration of Randall Rasey (“First Rasey
`
`Decl.”), Dkt. 17, Ex. A (collecting cases); Malibu Media, LLC v. Doe, No. 15-CV-4369, 2015
`
`WL 4092417, at *2 (S.D.N.Y. July 6, 2015); In re Malibu Media Adult Film Copyright
`
`Infringement Cases, No. 15-CV-1855, 2015 WL 3605834, at *3 (E.D.N.Y. June 8, 2015);
`
`Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233, 237 (E.D.N.Y. 2012); Malibu Media, LLC v.
`
`Does 1–5, No. 12-CV-2950, 2012 WL 2001968, at *1 (S.D.N.Y. June 1, 2012). The Court,
`
`however, must balance Defendant’s privacy right in the legitimate use of the internet against
`
`Plaintiff’s interests in protecting its copyrighted material from infringement. That interest is not
`
`lessened by the salacious content of the material. “[I]n the absence of the ability to subpoena the
`
`ISP, the Plaintiff will be unable to identify and serve Defendant, effectively terminating the
`
`litigation.” Strike 3 Holdings, LLC, 2018 WL 2229124, at *2. In the Court’s view, that result
`
`would be unfair, given the possibility that Defendant has infringed Plaintiff’s copyright and
`
`caused Plaintiff injury.
`
`
`4
`To the extent that Defendant objects to Plaintiff’s subpoena on the grounds of a First Amendment privilege
`of anonymity, that objection fails for the reasons set forth in Strike 3 Holdings, LLC, 2018 WL 2229124, at *2.
`
`8
`
`
`
`Case 1:18-cv-02648-VEC Document 26 Filed 01/02/19 Page 9 of 9
`
`The Court believes that its protective order has fairly balanced Plaintiff’s and
`
`Defendant’s interests. The Court has allowed Defendant to proceed anonymously, has ordered
`
`Plaintiff not to initiate settlement negotiations until the Complaint has been properly served, and
`
`has prohibited Plaintiff from obtaining any information from Defendant’s ISP other than
`
`Defendant’s name and address. See Order (June 26, 2018). These measures will enable
`
`Plaintiff’s lawsuit to move forward, while limiting the risk that Defendant will be unfairly
`
`coerced into a settlement. See Malibu Media, LLC v. John Does 1–5, 285 F.R.D. 273, 278
`
`(S.D.N.Y. 2012) (“The ability of a John Doe defendant to ensure that his name will not be
`
`publicly associated with the case removes much, if not all, of the leverage that a plaintiff would
`
`possess to unduly coerce him into settlement.”). To the extent that Defendant is not actually
`
`responsible for the infringement, his remedy—like that of every other falsely accused civil
`
`defendant—is simple: he can move to dismiss. In the meantime, however, Plaintiff is entitled to
`
`use a narrow and focused tool of discovery in order to enable its case to proceed.
`
`CONCLUSION
`
`For all the foregoing reasons, Defendant’s motion to quash is DENIED. The Clerk is
`
`respectfully directed to terminate the open motions at Dkts. 14, 16, and 23.
`
`SO ORDERED.
`
`
`
`
`
`
`
`Date: January 2, 2019
`New York, New York
`
`
`
`
`
`
`
`
`
`
` ________________________
`
`VALERIE CAPRONI
` United States District Judge
`
`
`
`9
`
`
`
`