Strike 3 Holdings, LLC v. Doe

337 F. Supp. 3d 246
CourtDistrict Court, W.D. New York
DecidedNovember 26, 2018
Docket1:18-CV-00571 EAW
StatusPublished
Cited by14 cases

This text of 337 F. Supp. 3d 246 (Strike 3 Holdings, LLC v. Doe) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strike 3 Holdings, LLC v. Doe, 337 F. Supp. 3d 246 (W.D.N.Y. 2018).

Opinion

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Strike 3 Holdings, LLC ("Plaintiff") commenced this action on May 17, 2018, alleging that defendant John Doe subscriber assigned Internet Protocol ("IP") address 69.204.6.161 ("Defendant") downloaded and distributed Plaintiff's motion *250pictures ("the Works") in violation of the United States Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq. (Dkt. 1).

Presently before the Court is Defendant's motion to quash a third-party subpoena directed to Defendant's Internet Service Provider ("ISP") pursuant to the Court's August 28, 2018, Decision and Order (Dkt. 10) ("Protective Order"), which Defendant also seeks to vacate (Dkt. 12). Defendant alternatively requests that, if the motion to quash/vacate is denied s/he be permitted to proceed anonymously in the litigation. (Dkt. 12-2 at 15-16). Also pending before the Court is Plaintiff's motion for an extension of time to file and effectuate service on Defendant. (Dkt. 11).

For the reasons that follow, the Court denies Defendant's motion to quash/vacate, grants in part and denies in part Defendant's request to proceed anonymously, and grants Plaintiff's motion for an extension of time.

BACKGROUND

The following alleged facts are taken from the Complaint and assumed to be true for the purposes of the pending motions. Plaintiff is an adult film company that operates subscription-based websites where paying viewers can watch its Works. (Dkt. 1 at ¶¶ 2, 13). Plaintiff also licenses its Works to broadcasters and sells them as DVDs. (Id. at ¶ 14). However, its Works are also often illegally downloaded by people using a BitTorrent file network. (Id. at ¶¶ 16, 23). BitTorrent is a system designed to quickly distribute large files such as movies over the internet. (Id. at ¶ 17). Users of BitTorrent connect to the computers of other BitTorrent users to simultaneously upload and download pieces of a file to and from other users. (Id. ). The user first obtains a torrent file that contains instructions for identifying the internet addresses of other BitTorrent users with the file, as well as for downloading the movie. (Id. at ¶ 18). After the user downloads pieces of the file from the other BitTorrent users, the file gets automatically reassembled into its original form. (Id. ).

Plaintiff used an investigator to discover IP addresses where its Works were downloaded using BitTorrent (id. at ¶¶ 23-27), and then used geolocation technology to determine the general regional location of the IP addresses (id. at ¶ 9). One of these IP addresses was allegedly Defendant's. (Id. at ¶¶ 24-27). On May 17, 2018, Plaintiff filed the instant lawsuit against Defendant (Dkt. 1), but was unable to serve the Complaint because while Defendant's alleged IP address and general location are known, her/his name and physical address are not.

Plaintiff moved ex parte for leave to serve a third-party subpoena on Defendant's ISP so that Plaintiff could learn the name and address of Defendant and properly serve her/him. (Dkt. 4). On August 28, 2018, the Court granted Plaintiff's motion for leave to serve a third-party subpoena pursuant to Federal Rules of Civil Procedure 26(d)(1) and 45. (Dkt. 10).

After receiving notice of the subpoena from her/his ISP (Dkt. 12-1 at 4-5), on October 9, 2018, Defendant filed a motion to quash the subpoena and vacate the Court's Protective Order (Dkt. 12), and a request to proceed anonymously in the litigation if the motion is denied (Dkt. 12-2 at 15-16). Plaintiff submitted its reply on October 30, 2018 (Dkt. 14), and also filed a motion for an extension of time to file and effectuate service on Defendant. (Dkt. 11).

DISCUSSION

I. Motion to Quash/Vacate

A. Legal Standard

1. Motion to Quash Subpoena

Rule 45 provides that a court "must quash or modify a subpoena that *251... requires disclosure of privileged or other protected matter, if no exception or waiver applies" or that "subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). "[T]he burden of persuasion in a motion to quash a subpoena ... is borne by the movant." Sea Tow Int'l, Inc. v. Pontin , 246 F.R.D. 421, 424 (E.D.N.Y. 2007) (citation omitted); see Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP , No. 03 Civ. 5560(RMB)(HBP), 2008 WL 4452134, at *4 (S.D.N.Y. Oct. 2, 2008) ("[T]he party seeking to quash the subpoena bears the burden of demonstrating that the subpoena is over-broad, duplicative, or unduly burdensome."). Factors that should be considered when determining whether to grant a motion to quash based on a qualified privilege protecting anonymity 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 objecting party's expectation of privacy.

Arista Records, LLC v. Doe 3 , 604 F.3d 110, 119 (2d Cir. 2010) (quotation, alterations, and citation omitted). Ultimately, decisions about the reasonableness and burden of a subpoena are left to the sound discretion of the court. See Malibu Media, LLC v. Doe , No. 14-CV-4808 (JS)(SIL), 2016 WL 4574677, at *2 (E.D.N.Y. Sept. 1, 2016) (" Malibu No. 14-CV-4808 ").

2. Motion to Vacate Court Order

Rule 60 allows a court to relieve a party "from a final judgment, order, or proceeding" for any "reason that justifies relief." Fed. R. Civ. P. 60(b)(6). A party seeking relief pursuant to Rule 60(b)(6) is required to show that "the asserted grounds for relief are not recognized in clauses (1)-(5) of the Rule" and that "there are extraordinary circumstances justifying relief." Tapper v. Hearn , 833 F.3d 166

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Bluebook (online)
337 F. Supp. 3d 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strike-3-holdings-llc-v-doe-nywd-2018.