Vondran Legal® - Strike 3 Holdings Litigation - Staying Anoynmous. If you are facing a file-sharing lawsuit in the Third Circuit, you need to be aware your name could be revealed on the court's docket. If you received a notice of subpoena from your ISP, call us to discuss legal representation at (877) 276-5084.
Introduction
Maintaining your anonymous status when you are a John Doe defendant in a strike 3 holding porn litigation just got a bit trickier, at least in the 3rd Circuit. In this jurisdiction, a defendant may have to prove to the federal court that they are entitled to seal the records in the case and maintain their anonymity throughout the litigation, or at least as long as the judge allows. Normally, there is a presumption that court cases should be open to the public, so, there could be an uphill battle in keeping your name out of the public dockets. This may lead to more "shame settlements."
What are the Third Circuit Courts?
The third circuit federal courts can be found in the states of Delaware, Pennsylvania, and New Jersey.
1. United States District Court for the District of Delaware
Address: 844 N. King Street, Wilmington, DE 19801
Phone: (302) 573-6170
Website: https://www.ded.uscourts.gov/
2. United States District Court for the District of New Jersey
Address: Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Newark, NJ 07102
Phone: (973) 776-9300
Website: https://www.njd.uscourts.gov/
3. United States District Court for the Eastern District of Pennsylvania
Address: James A. Byrne Courthouse, 601 Market Street, Philadelphia, PA 19106
Phone: (215) 597-7704
Website: https://www.paed.uscourts.gov/
4. United States District Court for the Middle District of Pennsylvania
Address: Ronald Reagan Federal Building & U.S. Courthouse, 228 Walnut Street, Harrisburg, PA 17108
Phone: (717) 901-2816
Website: https://www.pamd.uscourts.gov/
5. United States District Court for the Western District of Pennsylvania
Address: Joseph F. Weis Jr. U.S. Courthouse, 700 Grant Street, Pittsburgh, PA 15219
Phone: (412) 395-4052
Website: https://www.pawd.uscourts.gov/
Third Circuit Case Law
Recently, some district courts in the Third Circuit have denied requests to file their pleadings under seal, and some have even raised whether it is appropriate for Strike 3 Holdings to even seek that protective relief on behalf of the Defendant. Likely, S3 will have no control over whether the Court will grant the motion to seal or not. Here is one case discussing this unique issue in file-sharing adult movie copyright litigation.
"(a) the nature of the materials or proceedings at issue;(b) the legitimate private or public interest which warrants the relief sought;(c) the clearly defined and serious injury that would result if the relief sought is not granted;(d) why a less restrictive alternative to the relief sought is not available;(e) any prior order sealing the same materials in the pending action;and(f) the identity of any party or nonparty known to be objecting to the sealing request.” L. Civ. R. 5.3(c)(3).
Although the Court acknowledges that there is some social stigma attached to consuming pornography, Defendant strenuously denies the allegations, and it is the rare civil lawsuit in which a defendant is not accused of behavior of which others may disapprove. The nature of the allegations alone [does] not merit a protective order.
“Although the Court acknowledges there may be some social stigma attached to viewing pornography, the potential embarrassment does not constitute an exceptional circumstance that would warrant allowing the movant to proceed anonymously.... The proper remedy is not to depart from the ‘constitutionally-embedded presumption' of openness of judicial proceedings; the remedy is to vigorously defend the lawsuit.” Malibu Media, LLC v. Doe, No. 13-669, 2013 WL 5321598, at *2 (S.D. Ind. Sept. 20, 2013); see also Malibu Media, LLC v. John Does No. 1-30, No. 12-3896, 2012 WL 6203697, at *7 (D.N.J. Dec. 12, 2012)(denying defendants' request to proceed anonymously, finding that “Defendants' broad claim of potential reputational injury fails to articulate a reasonable fear of severe harm”).
In addition, the Court notes that Defendant has not asserted a desire to proceed anonymously as Defendant neither moved to seal the documents containing Defendant's name or joined in Plaintiff's motion to seal, nor has Defendant otherwise moved to protect Defendant's identity from disclosure in this case. The present case, therefore, is unlike other cases in this District in which the Doe Defendants' motions to proceed pseudonymously were granted based on Defendants' expressed fear of harm if their identities were disclosed.
Moreover, this case is unlike those cases in this District in which courts granted protective orders upon Plaintiff's motion, where safeguards were entered in those cases at a time when the alleged infringers' identities were unknown to protect a potentially innocent third party from being associated with the litigation. See, e.g., Strike 3 Holdings v. Doe, 2021 WL 2769890, at *2 (“[T]he Court will grant plaintiff's request for entry of a protective order and limit its discovery request to ensure an innocent party is not unduly burdened.”); Strike 3 Holdings v. Doe, 2021 WL 2567463, at *2 (expressing need to “impose safeguards to protect the privacy rights of potentially innocent third-parties” and alleviate concerns about misidentification); Strike 3 Holdings v. John Doe, 2020 WL 7074387, at *1-2 (court imposed “strict restrictions on the information that can be obtained” and required [p]laintiff to refrain from publicly disclosing identifying information, noting “the anonymous nature of the alleged infringing conduct”).
Here, by contrast, Plaintiff represents that it believes after conducting an investigation that Defendant is the allegedly infringing party. (Fernandez Cert., p. 2, ¶ 7.) Furthermore, this Court, by Order dated October 29, 2020, implemented safeguards to protect a potentially innocent third party by providing an opportunity for Defendant to file a motion to quash the subpoena or move for a protective order (Order [D.I. 5], Oct. 29, 2020, p. 3), yet Defendant did not utilize these safeguards. Since Defendant has not asserted any interest in remaining anonymous, the Court has no basis to conclude that this case presents exceptional circumstances that warrant proceeding anonymously. See, e.g., Strike 3 Holdings, LLC v. John Doe Subscriber IP Address 66.44.31.160, 325 F.R.D. 499, 503 (D.D.C. 2018)(denying Plaintiff's motion for protective order that would allow a defendant to proceed anonymously because Plaintiff failed to proffer “any facts that would indicate that Defendant wishes to remain anonymous, or that there is any reason to fear that Defendant may have been misidentified as having downloaded or accessed adult content”).
Finally, the Court finds that Plaintiff fails to demonstrate a clearly defined and serious injury if the motion to seal is not granted. The Court may seal information upon a “particularized showing that disclosure will cause a ‘clearly defined and serious injury to the party seeking closure.' ” Securimetrics, Inc. v. Iridian Techs., Inc., No. 03-4394, 2006 WL 827889, at *2 (D.N.J. Mar. 30, 2006)(quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)). ‘[B]road allegations of harm, unsubstantiated by specific examples or articulated reasoning' ”will not suffice to seal a judicial record. Id. (quoting Pansy, 23 F.3d at 786). Plaintiff concedes that it “cannot declare ... that a clearly defined and serious injury will result to Defendant if this Motion is not granted.” Rather, Plaintiff asserts that it will suffer injury if Defendant's name is publicly disclosed because “future parties and courts may utilize the instant matter identifying Defendant as a basis to accuse Plaintiff of attempting to coerce settlements in this and other matters by threatening to publicly reveal a defendant's identity in connection with the allegations of infringement of adult works.” (Id. at pp. 6-7, ¶ 24.)
The Court rejects Plaintiff's assertion of harm as a basis to seal Defendant's identifying information at this time. The Court notes that some courts have raised issues with Plaintiff's settlement of these actions. See, e.g., Strike 3 Holdings, LLC v. John Doe, subscriber assigned IP Address 32.212.123.108, No. 18-1945, 2019 WL 1122984, at *3 (D. Conn. Mar. 12, 2019)(“This Court is sensitive to the fact that the sheer volume of cases commenced by Strike 3 Holdings, and their brief procedural history – commencement of the action, receipt of permission to serve a third-party subpoena on an ISP provider prior to the 26(f) conference, and voluntary dismissal of the actions weeks or months thereafter – is suggestive of coercive settlement practices that this Court does not condone.”)
Other courts in this District, however, have found no basis to conclude that Plaintiff has engaged in abusive litigation tactics. See, e.g., Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 173.71.68.16, Nos. 18-2674, 18-12585, 18-12586, 18-14114, 2019 WL 5446239, at *6 (D.N.J. Oct. 24, 2019)(while finding that good cause did not exist for expedited discovery because complaint as pled was futile, court noted as an “underlying assumption” that “even though numerous cases discuss the fact that Strike 3 has or may engage in abusive litigation practices, the Court has not seen evidence that this occurred in its cases”), rev'd on other grounds, 2020 WL 3567282, at *1 (D.N.J. June 30, 2020)(finding good cause to permit limited expedited discovery to aid in identification of John Doe defendant); Strike 3 Holdings, LLC v. Doe, 2019 WL 4745360, at *6 (“[T]he Court does not find that Defendant has provided any evidence that Plaintiff has or plans to engage in such abusive litigation tactics.”). As such, Plaintiff's asserted fear of being accused of coercing settlements based on its conduct in this litigation does not support the present motion. Plaintiff has failed to articulate a clearly defined and serious injury that will result if the documents at issue are not sealed.
Potential Grounds to Seal
Here are a few possible grounds to assert to try to seek granting of the motion depending upon the facts of your case:
- Defendants employer (or future employer) may learn of the case causing a loss of employment, or failure to promote;
- Out-of-work defendants may have lost job opportunities (ex. background search by new employers);
- Potential loss of security clearance;
- Defendants spouse may find out causing marital problems;
- Potential problems for John Doe defendant's in the United States on VISA and work permits.
NOTE: None of these grounds is guaranteed to work. Call us to discuss the unique facts of your case.