United States District Court, D. Maryland
MEMORANDUM AND ORDER
JAMES
K. BREDAR CHIEF JUDGE.
The
Court has pending before it this lawsuit brought by Plaintiff
Strike 3 Holdings, LLC (“Strike 3” or
“Plaintiff”) alleging copyright infringement and
other claims against a single “John Doe”
defendant (“Doe Defendant”), who is alleged to
have utilized the BitTorrent file distribution network to
download adult pornographic films subject to copyrights held
by Strike 3. The Doe Defendant has been identified in the
lawsuit only by an Internet Protocol address[1] (“IP
Address”) assigned to a customer on a specific date by
an Internet Service Provider (“ISP” or
“Provider”) and through which the copyrighted
work was allegedly downloaded. Strike 3 has filed a motion
for leave to serve a third-party subpoena prior to a Federal
Rule of Civil Procedure 26(f) discovery conference (ECF No.
4), requesting permission to initiate discovery to identify
the account subscriber (“Doe Subscriber”)
associated with the IP Address used to download its
copyrighted films, notwithstanding the provisions of Rule
26(d)(1), which preclude a party from seeking discovery from
any source before the parties have conferred as required by
Rule 26(f). Strike 3 contends that it must be permitted to
issue a Rule 45 subpoena to Providers to identify the
customer assigned the IP Address on the date or dates in
question in order to learn the identity of the person
responsible for downloading the copyrighted works, and that
there is no other way for it to obtain this information.
The
Court is aware that in similar cases filed by plaintiffs in
other jurisdictions against Doe Defendants, concerns have
been raised as to the sufficiency of the allegations of
complaints because association of an IP address with a
customer may be insufficient to state a claim.[2] There also have
been reports of plaintiffs undertaking abusive settlement
negotiations with Doe Defendants due to the pornographic
content in the copyrighted works, the potential for
embarrassment, and the possibility of defendants paying
settlements even though they did not download the
plaintiff's copyrighted material.[3]
Having
considered the concerns raised by other courts that have
addressed similar cases, and Strike 3's motion requesting
permission to initiate discovery to identify the John Doe
Subscriber, the Court GRANTS the motion, subject to the
following conditions and limitations:
1.
Strike 3 may obtain from the clerk a Subpoena to be served on
the ISP through which the Doe Subscriber allegedly downloaded
the copyrighted work, and it may serve the ISP in accordance
with Federal Rule of Civil Procedure 45. The Subpoena may
command production of documents and/or electronically stored
information (collectively, “Information”)
identifying the Doe Subscriber. The Subpoena shall have as an
attachment a copy of the complaint filed in this lawsuit, and
a copy of this Order.
2.
After having been served with the Subpoena, the ISP will
delay producing to Strike 3 the subpoenaed Information until
after it has provided the Doe Subscriber with
a. Notice that this suit has been filed naming the Doe
Subscriber as the one that allegedly downloaded copyright
protected work;
b. A copy of the Subpoena, the complaint filed in this
lawsuit, and this Order;
c. Notice that the ISP will comply with the Subpoena and
produce to Strike 3 the Information sought in the Subpoena
unless, within 30 days of service of the Subpoena, the Doe
Subscriber 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. The
Doe Subscriber may move to quash the Subpoena anonymously,
but MUST PROVIDE his or her name and current address to the
Clerk of the Court so that the Court may provide notice of
the filings to the Subscriber. This may be accomplished by
completing and mailing to the Clerk of the Court the attached
form. This contact information will not be disclosed to the
Plaintiff and will be used solely for the purposes stated
above. The Court will not decide any motions until the Doe
Subscriber has provided all required information. If the Doe
Subscriber fails to file a motion to quash the Subpoena or
for other appropriate relief within 30 days, the ISP shall
provide to Strike 3 the Information requested in the Subpoena
within 14 days. Strike 3's use of this Information shall
be restricted as further provided in this Order. Pursuant to
Rule 45(c), Strike 3 shall reimburse the ISP for its
reasonable costs and expenses, including attorney's fees,
associated with complying with the Subpoena and this Order.
4. On
receipt of the Information from the ISP, Strike 3 must mark
it as “Highly Confidential, ” and, in the absence
of further order of the Court, may only use it to determine
whether, pursuant to Rule 11(b), it has sufficient
information to amend the complaint to name as an individual
defendant the Subscriber. Unless otherwise ordered by the
Court, Strike 3, its agents, representatives, and attorneys
may not disclose the Information received from the ISP to any
person not directly involved as an attorney in representing
Strike 3 in this copyright infringement action relating to
the Information received, except as provided below. Any
person to whom the Information or its contents is disclosed
shall be required to sign an agreement to be bound by the
provisions of this Order, enforceable by an action for
contempt, prior to being informed of the Information or its
contents. Any amended complaint filed by Strike 3 naming an
individual defendant shall be filed so that the name and any
specifically identifying information is redacted from the
publicly available court docket, to be replaced by first and
last initials only, with an unredacted copy of the amended
complaint filed under seal. If Strike 3 determines that the
Information received pursuant to the Subpoena is insufficient
to support the filing of an amended complaint, it may
a. Serve a subpoena pursuant to Rule 45(a)(1)(B) commanding
the Subscriber to appear and attend a deposition to answer
questions regarding whether the Subscriber was responsible
for downloading the copyrighted work alleged in the original
complaint.
b. Pursuant to Rule 26(b)(2)(C), the deposition permitted
pursuant to paragraph 4.a of this Order shall not last more
than one hour in duration. Pursuant to Rule 37(a)(4), the
Subscriber shall answer questions fully and unevasively, but
may refuse to answer questions that would require the
disclosure of privileged (including the 5th
Amendment privilege against ...