MEMORANDUM OPINION
TIMOTHY J. KELLY United States District Judge
Before
the Court is Plaintiff's Motion for Leave to Serve a
Third Party Subpoena Prior to a Rule 26(f) Conference. ECF
No. 5. For the reasons stated herein, this Motion is
GRANTED.
I.
FACTUAL BACKGROUND Plaintiff Strike 3 Holdings, LLC
owns the rights to certain adult entertainment films. ECF No.
1 (“Compl.”) ¶ 2. Plaintiff alleges that
Defendant, currently identified as John Doe subscriber
assigned IP address 73.163.187.22, has been downloading and
distributing these films using a BitTorrent protocol in
violation of the Copyright Act, 17 U.S.C. §§ 101
et seq. Compl. ¶¶ 4-6, 23-32. Plaintiff
further alleges that it used geolocation technology to trace
the IP address used by Defendant to a physical address in the
District of Columbia. Id. ¶ 9.
Plaintiff
has moved for leave to file a third-party subpoena on
Defendant's internet service provider (“ISP”)
to “learn Defendant's identity, investigate
Defendant's role in the infringement, and effectuate
service.” ECF No. 6 (“Pl.'s Mem.”) at
2. Plaintiff asserts that the subpoena “will only
demand the true name and address of Defendant” and that
the information will only be used to prosecute claims in its
complaint. Id.
II.
LEGAL STANDARD
A party
ordinarily “may not seek discovery from any
source” prior to a conference under Rule 26(f) unless
“authorized . . . by court order.” Fed.R.Civ.P.
26(d)(1). “To determine whether to authorize discovery
prior to a Rule 26(f) conference in a particular case, this
district has applied a ‘good cause'
standard.” Malibu Media, LLC v. Doe, 64
F.Supp.3d 47, 49 (D.D.C. 2014) (quoting Warner Bros.
Records v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C. 2007)).
“Good cause to take discovery prior to the Rule 26(f)
conference exists where the discovery is necessary
‘before th[e] suit can progress further.'”
Malibu Media, LLC v. Doe, No. 15-cv-986 (RDM), 2015
WL 5173890, at *1 (D.D.C. Sept. 2, 2015) (alteration in
original) (quoting Arista Records LLC v. Does 1-19,
551 F.Supp.2d 1, 6 (D.D.C. 2008)).
A
plaintiff also “must ‘have at least a good faith
belief that such discovery will enable it to show that the
court has personal jurisdiction over the
defendant[s].'” AF Holdings, LLC v. Does
1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014) (alteration
in original) (quoting Caribbean Broad. Sys., Ltd. v.
Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir.
1998)). “The Copyright Act does not provide for the
exercise of personal jurisdiction over alleged infringers on
any basis.” Malibu Media, LLC v. Doe, 177
F.Supp.3d 554, 556-57 (D.D.C. 2016) (citing Exquisite
Multimedia, Inc. v. Does 1-336, No. 11-cv-1976
(RWR/JMF), 2012 WL 177885, at *2 (D.D.C. Jan. 19, 2012)).
Thus, a plaintiff “must predicate this Court's
jurisdiction over the infringers on the reach of District of
Columbia law.” Id. Under the District of
Columbia's long-arm statute, “the only conceivable
way that personal jurisdiction might properly be
exercised” is if Defendant is a “resident[] of
the District of Columbia or at least downloaded the
copyrighted work in the District.” AF
Holdings, 752 F.3d at 996 (citing D.C. Code §
13-423(3), (4)).
III.
ANALYSIS
Plaintiff
has satisfied the good cause standard to serve discovery
prior to a Rule 26(f) conference. As an initial matter,
“this suit cannot move forward without Plaintiff first
being able to identify Defendant so that service can be
effected.” Malibu Media, LLC v. Doe, No.
16-cv-639 (RC/AK), 2016 WL 1698263, at *2 (D.D.C. Apr. 27,
2016). According to a declaration provided by Plaintiff,
Defendant's internet service provider is the only entity
that can identify Defendant by correlating the IP address
that has been linked to the alleged infringement with its
subscriber. ECF No. 5-3 ¶ 12.
Plaintiff
has also established a good faith belief that this Court has
personal jurisdiction over Defendant. Plaintiff used
geolocation technology to trace Defendant's IP address to
a physical location within the District of Columbia.
Pl.'s Mem. at 6. The D.C. Circuit “has suggested
that reliance on ‘geolocation services' of this
sort is sufficient to justify a ‘good faith belief'
that a district court has personal jurisdiction over unknown
defendants.” Malibu Media, 2015 WL 5173890, at
*2 (quoting A.F. Holdings, 752 F.3d at 996); see
also Malibu Media, 2016 WL 1698263, at *2 (“Using
a geolocation service that estimates that location of
Internet users based on their IP addresses is sufficient to
demonstrate a good faith belief that the court has personal
jurisdiction over the defendant.”); Nu Image, Inc.
v. Does 1-23, 322, 799 F.Supp.2d 34, 41 (D.D.C. 2011)
(“Plaintiff has a good faith basis to believe a
putative defendant may be a District of Columbia
resident if a geolocation service places his/her IP address
within the District of Columbia . . . .”) (emphasis in
original). Thus, in its “broad discretion to . . .
dictate the sequence of discovery, ” Watts v.
SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting
Crawford-El v. Britton, 523 U.S. 574, 598 (1998)),
the Court authorizes Plaintiff to serve limited discovery on
Defendant's ISP.
IV.
PROTECTIVE ORDER
Plaintiff
notes that in similar cases involving adult content, some
courts “have found it appropriate to issue a protective
order establishing procedural safeguards, ” and it has
encouraged this Court to do so here if it deems it
appropriate. Pl.'s Mem. at 7-8. The Court finds that a
protective order is warranted here. “The fact that a
copyrighted work was illegally downloaded from a certain IP
address does not necessarily mean that the owner of that IP
address was the infringer.” Media Prods., Inc. v.
Does 1-26, No. 12-cv-3719 (HB), 2012 WL 2190613, at *1
(S.D.N.Y. June 12, 2012). “Indeed, the true infringer
could just as easily be a third party who had access to the
internet connection, such as a son or daughter, houseguest,
neighbor, or customer of a business offering an internet
connection, ” and “[t]here is a real risk that
defendants might be falsely identified and forced to defend
themselves against unwarranted allegations.”
Id. There is also a risk that “the innocent
defendant may be coerced into an unjust settlement with the
plaintiff to prevent the dissemination of publicity
surrounding unfounded allegations.” Id. In
sum, absent a protective order, “there is no reason to
conclude that adequate protections exist to safeguard the
individuals or entities subscribing to the implicated IP
address[] against the danger of ‘annoyance,
embarrassment, oppression, or undue burden or
expense.'” In re Malibu Media Adult Film
Copyright Infringement Cases, Nos. 15-cv-1855 (SJF)
(SIL) et al., 2015 WL 3605834, at *4 (E.D.N.Y. June
8, 2015) (quoting Fed.R.Civ.P. 26(c)).
In
light of these considerations, Plaintiff shall be allowed to
serve early discovery by serving a Rule 45 subpoena on the
identified ISP that seeks information sufficient to identify
John Doe subscriber assigned IP address 73.163.187.22.
However, if and when the ISP is served with a subpoena,
Plaintiff shall provide the ISP with a copy of this
Memorandum Opinion and the accompanying Order with its
subpoena. The ISP shall give written notice, which may
include e-mail notice, and shall include a copy of the
subpoena, this Memorandum Opinion, and the accompanying
Order, to the subscriber in question at least twenty (20)
business days prior to releasing the subscriber's
identifying information to Plaintiff. Any motion to quash the
subpoena shall be filed before the return date of the
subpoena, which shall be no earlier than forty-five (45)
calendar days from the date of service. The ISP shall
preserve any subpoenaed information pending the resolution of
any timely-filed motion to quash. Any information disclosed
to Plaintiff in response to a Rule 45 subpoena may be used by
Plaintiff solely for the purpose of protecting
Plaintiff's rights as set forth in the Complaint.
See ECF No.1. On or before February 20, 2018,
Plaintiff shall file a Status Report with the Court briefly
outlining the progress of the discovery authorized by the
accompanying Order.
V.
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