Strike 3 Holdings v. Doe

• Decision Date: 23 July 2021
• Docket Number: Civil Action No. 21-0837 (RC/RMM)
• Parties: STRIKE 3 HOLDINGS, LLC, Plaintiff, v. JOHN DOE, Subscriber IP address 72.66.7.195 Defendant.
• Court: U.S. District Court — District of Columbia

STRIKE 3 HOLDINGS, LLC, Plaintiff, v. JOHN DOE, Subscriber IP address 72.66.7.195 Defendant.

Civil Action No. 21-0837 (RC/RMM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 23, 2021

MEMORANDUM OPINION

This case arises from the alleged illegal download and distribution of adult films to which Plaintiff Strike 3 Holdings, LLC ("Strike 3") owns the copyright. Defendant is currently unknown, except as the subscriber of the IP address 72.66.7.195 ("the IP address"), used to download Strike 3's copyright materials. To identify this subscriber, Strike 3 has filed a Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference ("Motion"). See ECF No. 3. Strike 3 specifically seeks discovery from Verizon Fios,¹ the Internet Service Provider ("ISP") that provides internet service to the IP address. See Mem. in Supp. of Pl's Mot. for Leave to Serve a Third-Party Subpoena Prior to a R. 26(f) Conference at 1-2, ECF No. 3-2 ("Pl's Mem."). With this subpoena, Strike 3 seeks the name and address of the subscriber of the IP address, thereby identifying Defendant John Doe. Id. at 1. After considering the Motion, the pleadings, and relevant law, the Court GRANTS Strike 3 leave to serve its third-party subpoenabut DENIES WITHOUT PREJUDICE Strike 3's request for a protective order. Subject to the procedure described below, Strike 3 may serve a subpoena on Verizon Fios to obtain the name and address of the subscriber associated with IP address 72.66.7.195.

BACKGROUND

Strike 3 is an adult media company based in Delaware. Compl. ¶¶ 11, 13. As Strike 3's content is frequently subject to piracy, the company developed a scanner with the purpose of identifying individuals who infringe on Strike 3's copyrighted content. Compl. ¶¶ 16, 27-28. With this scanner, Strike 3 established that Defendant downloaded and distributed thirty-one of Strike 3's copyrighted motion pictures using IP address 72.66.7.195 in violation of the Copyright Act. Compl. ¶¶ 27-29, 32-35, 37, 43-44; Decl. of Patrick Paige, ECF No. 3-4 ("Paige Decl.") ¶ 13.

Strike 3 has been unable to identify Defendant by name because only ISPs possess the subscriber information necessary to link an individual customer to his or her IP address. See Paige Decl. ¶ 28. Strike 3 now seeks leave to obtain expedited discovery from Verizon Fios, the ISP provider for the IP address. See Pl's Mem. at 1. Specifically, Strike 3 proposes to serve a Rule 45 subpoena to discover the name and address of the subscriber of the IP address so that it may further investigate—and prosecute—its claims. Id. at 2. Strike 3 represents that it will only use the information obtained to prosecute the claims brought in its Complaint and would consent to a protective order to allow the Defendant to proceed anonymously. See Pl's Mem. at 9-10.

LEGAL STANDARD

I. Request For Discovery Prior to Rule 26(f) Conference

Unless authorized by court order, no party may seek any discovery prior to a Rule 26(f) conference. See Fed. R. Civ. P. 26(d)(1); see also Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203, 1207 (D.C. Cir. 2020). Such an order is the "only potential avenue for discovery" in cases inwhich information from a third party is necessary to identify possible defendants. AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014).

To obtain discovery at that stage, a plaintiff must "have at least a good faith belief that [expedited] discovery will enable it to show that the court has personal jurisdiction over the defendant." Id. After this requirement is met, courts in this Circuit traditionally permit expedited discovery if the plaintiff has established good cause to obtain the discovery. See Malibu Media, LLC v. Doe, 64 F. Supp. 3d 47, 49 (D.D.C. 2014) (citing Warner Bros. Records Inc. v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C.2007) ("[T]he Court finds that plaintiffs have made a showing of good cause for the discovery they seek.")); Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 6-7 (D.D.C. 2008) (noting the "overwhelming" number of cases where plaintiffs sought to identify "Doe" defendants and courts "routinely applied" the good cause standard to permit discovery). However, the D.C. Circuit has recently clarified that a court's analysis of whether to permit discovery must be grounded in the framework of Rule 26(b)—under which relevance and proportionality are the dispositive factors. See Strike 3 Holdings, LLC, 964 F.3d at 1207 ("A district court's discretion to order discovery, whether before or after the parties have conferred, is cabined by Rule 26(b)'s general limitations on the scope of discovery."); In re Clinton, 973 F.3d 106, 114 (D.C. Cir. 2020) (citing Strike 3 for same proposition). The D.C. Circuit declined to expressly determine "whether the 'good cause' standard continues to apply under the current version of Rule 26." Strike 3 Holdings, 964 F.3d at 1214 n.2. However, given that Rule 26 does not currently incorporate a good cause standard,² the Court will evaluate Strike3's Motion by assessing the relevance and proportionality of the proposed discovery. See generally Goodwin v. Dist. of Columbia, 2021 WL 1978795, at *3 n.1 (D.D.C. May 18, 2021) (conducting Rule 26 relevance and proportionality analysis to evaluate request for early discovery instead of applying "good cause" standard).

II. Motion for Protective Order

Federal Rule of Civil Procedure 26(c) permits the Court, upon a showing of "good cause," to "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1); see also Huthnance v. D.C., 255 F.R.D. 285, 296 (D.D.C. 2008) ("[G]ood cause exists under Rule 26(c) when justice requires the protection of a party or a person from any annoyance, embarrassment, oppression, or undue burden or expense.") (quoting Fonville v. District of Columbia, 230 F.R.D. 38, 40 (D.D.C. 2005)). Protective orders may also be used to "limit the manner in which . . . confidential information is to be revealed." Univ. of Mass. v. Roslin Inst., 437 F. Supp. 2d 57, 60 (D.D.C. 2006). The party requesting the protective order generally bears the burden of showing good cause "by demonstrating specific evidence of the harm that would result." Jennings v. Family Mgmt., 201 F.R.D. 272, 274-75 (D.D.C. 2001); Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998). Nonetheless, trial courts have broad discretion to issue and set the terms of a protective order and may do so sua sponte. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); Keaveney v. SRA Int'l, Inc., No. 13-00855, 2017 WL 1842544, *2 (D.D.C. May 3, 2017); Edwards v. Gordon & Co., 94 F.R.D. 584, 587 (D.D.C. 1982).

DISCUSSION

I. The Proposed Discovery Is Both Relevant and Proportional To Strike 3's Copyright Infringement Claims.

The Federal Rules of Civil Procedure allow discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26 (b)(1). Relevance is "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any party's claim or defense." United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016). When addressing proportionality, courts must consider six factors: the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). "[N]o single factor is designed to outweigh the other factors in determining whether the discovery sought is proportional." Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., 322 F.R.D. 1, 6 (D.D.C. 2017).

A. Relevance

The name and address of the subscriber associated with the IP Address 72.66.7.195 is certainly relevant because it will help Strike 3 identify the John Doe Defendant. See Strike 3 Holdings, LLC, 964 F.3d at 1210 ("It is well established that plaintiffs are permitted to proceed against John Doe defendants so long as discovery can be expected to uncover the defendant's identity."). Strike 3 cannot prosecute its claims without knowing the identity of the alleged infringer, and therefore the information it seeks to obtain from Verizon Fios clearly "bears directly on," and is relevant to, Strike 3's claim. Goodwin, 2021 WL 1978795 at *4; see generally Strike 3 Holdings, LLC v. Doe, 2019 WL 1865919, at *2 (N.D. Cal. Apr. 25, 2019)(denying motion to quash subpoena served to identify a potential infringer and stating "Plaintiff needs the subscriber information to conduct a good faith investigation."). Although the subscriber of the IP address may not be the infringer, at this stage, Strike 3 need only demonstrate that learning the subscriber's identity may help it identify the infringer. See Strike 3 Holdings, 964 F.3d at 1210; see also Arista Records, 551 F. Supp. 2d at 8 (refusing to consider arguments that the subscriber associated with the IP address may not be the actual infringer when reviewing a motion to quash a subpoena served during expedited discovery).

Further, Strike 3 has established a good faith belief that the infringer will be subject to the Court's personal jurisdiction. Absent such a showing, "there is little reason to believe that the information sought will be 'relevant to the subject matter involved in the action,'" because "[t]he identity of prospective defendants who cannot properly be sued in this district can be of little use in a lawsuit brought in this district."³ AF Holdings, 752 F.3d at 995 (citing Fed. R. Civ. P. 26(b)(1)); see also Strike 3 Holdings, 964 F.3d at 166-67. Strike 3's claims arise under the Copyright Act, 17 U.S.C. § 101 et seq., which "does not provide for the exercise of personal jurisdiction over alleged infringers on any...