UPDATE: on August 10, 2021, the Court issued an opinion in Strike3 Holdings, LLC v. John Doe, 2021 WL 3511124 (D. Md. Aug. 10, 2021).
In Strike 3 Holdings, LLC v. John Doe, 2020 WL 7640943 (D. Md. Dec. 23, 2020), the Court authorized, but only in a strictly limited way, a subpoena to a third-party internet service provider to discover the identity of the person associated with an “IP,” or Internet Protocol, address on a specific date. The Court carefully balanced the need for discovery and the power to prevent using Court process to harass or embarrass others. In doing so, it set up a comprehensive due process protocol that protected the rights of plaintiff, John Doe, anyone mistakenly identified as John Doe, and the internet service provider.
Plaintiff sued John Doe alleging that he utilized the BitTorrent file distribution network to download adult pornographic films that were protected by plaintiff’s copyright. John Doe was known to the plaintiff only by his IP address.
The Court explained:
An IP address is not really an “address” or physical “place” in the usual sense of the words, and therefore the term can be quite misleading. In fact, it is only an electronic “route” to the Internet assigned by a Provider to a customer on a given date and hour to provide access to the internet. The route can be assigned to different customers on given dates or given hours. If a customer accesses the Internet briefly and signs off, the IP address is assigned to another customer.
Plaintiff sought leave to issue Rule 45 subpoenas to internet service providers to learn Doe’s identity. The Court noted concerns with such a process. It cited authorities discussing false positives, i.e., people who were wrongly identified. Id. at nn. 2-3. It also cited arguments that as many as 30% of the names turned over by ISPs are not those of the individuals who actually downloaded or shared copyrighted materials. It wrote:
The Court is aware that in similar cases filed by plaintiffs in other jurisdictions against Doe Defendants, there have been concerns 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. 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.
The Court authorized issuance and service of the subpoena; however, it placed strict limits on the process.
First, the Court specified that the subpoena must be served with a copy of the complaint and the Court’s order.
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.
The Court further provided that: “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.” [emphasis added].
The Court also ruled that, if no motion is filed, the ISP must provide the information to the plaintiff. Plaintiff was directed to treat the information as “highly confidential” and solely for use in the litigation. Plaintiff also was directed to pay the ISP’s costs and expenses, including attorney’s fees, associated with compliance.
In addition to those and other restrictions, the Court ordered:
Strike 3 is prohibited from initiating, directly or indirectly, any settlement communications with the Doe Defendant whose identity has been revealed pursuant to the Subpoena or deposition described in paragraph 4 above. Any settlement communications shall be initiated only as approved by the Court. On request of Strike 3 or the Doe Subscriber, submitted to the Court at any time, settlement shall be conducted under supervision of one or more Magistrate Judges designated by the Court for this purpose. Unless otherwise ordered by the Court, any settlement negotiations shall be subject to the confidentiality provisions of Local Rule 607.4. This paragraph shall not prevent Strike 3 from initiating or responding to a request for settlement communications with a Doe Defendant that is represented by counsel. [emphasis added].
The Court stated that the limitations imposed were a condition of discovery and “those limitations remain in effect until and unless modified by an order of this Court and do not expire at the conclusion of this litigation, irrespective of whether by entry of judgment, stipulation of dismissal, voluntary dismissal by Plaintiff, or other resolution.”