United States District Court, District of Columbia
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff Strike 3 Holdings, LLC
(“Plaintiff” or “Strike 3 Holdings”)
Motion for Leave to Serve a Third Party Subpoena Prior to a
Rule 26(f) Conference (“Motion”). See
ECF No. 3. Strike 3 Holdings seeks leave to serve a
third-party subpoena on RCN Telecom Services LLC
(“RCN”) in order to discover Defendant John
Doe's (“Defendant”) name and address.
See Mot. Leave to Serve Third Party Subpoena
(“Mot.”), Mem. in Supp. (“Mem. in
Supp.”) at 4-5, ECF No. 3-6. At present, Defendant is
identified only by an IP address and has not yet been served.
Having considered the Motion, the attachments thereto, and
the applicable law, the Court GRANTS Plaintiff's Motion.
3 Holdings owns the rights to certain adult entertainment
films that are available on the internet. See Mem.
in Supp. at 4; Compl. ¶ 31, ECF No. 1. On April 9, 2018,
Strike 3 Holdings filed a Complaint against Defendant
contending that Defendant, identified only by an IP address,
had allegedly stolen and distributed twenty-four of Strike 3
Holdings' films. Compl. ¶¶ 1, 4. Strike 3
Holdings learned of the actions of Defendant's IP address
through an investigator, IPP International U.G., which Strike
3 Holdings had hired to monitor copyright infringing
activity. Mem. in Supp. at 4; see also Mot., Ex. B
(“Fieser Decl.”) ¶¶ 5-7, ECF No. 3-2.
3 Holdings knows Defendant's IP address, but contends
that only Defendant's Internet Service Provider
(“ISP”), RCN, would be able to provide further
identifying information. See Mem. in Supp. at 4;
see also Mot., Ex. C (“Pasquale Decl.”)
¶ 10; Notice of Errata, Susan B. Stalzer's Decl.
(“Stalzer Decl.”) ¶ 11, ECF No. 4-1.
Accordingly, Strike 3 Holdings has sought leave to serve a
Rule 45 Subpoena on RCN in order to “learn
Defendant's identity, investigate Defendant's role in
the infringement, and effectuate service.” Mem. in
Supp. at 4-5. In its Motion, Strike 3 Holdings also proposes
that the Court issue a protective order to establish
procedural safeguards to protect the Defendant's privacy.
Id. at 8.
Expedited Jurisdictional Discovery
Rule of Civil Procedure 26 permits a party to seek discovery
in advance of a Rule 26(f) conference “when authorized
. . . by court order.” Fed.R.Civ.P. 26(d)(1). Courts in
this district have authorized such discovery upon a showing
of “good cause.” See, e.g., Malibu
Media, LLC v. Doe, No. 18-600 (TJK), 2018 WL 1730308, at
*1 (D.D.C. Apr. 10, 2018); Malibu Media, LLC v. Doe,
64 F.Supp.3d 47, 49 (D.D.C. 2014). Evaluating whether good
cause exists to permit expedited discovery falls within trial
judges' “broad discretion to tailor discovery
narrowly and 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)) (internal quotation marks omitted).
plaintiff who seeks discovery before the Rule 26(f)
conference in order to identify a defendant “is in
essence seeking jurisdictional discovery.” Malibu
Media, LLC v. Doe, 177 F.Supp.3d 554, 556 (D.D.C. 2016)
(citing Exquisite Multimedia, Inc. v. Does 1-336,
No. 11-1976 (RWR/JMF), 2012 WL 177885, at *1 (D.D.C. Jan. 19,
2012)). To obtain jurisdictional discovery, a plaintiff
“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.” AF Holdings,
LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014)
(quoting Caribbean Broad. Sys., Ltd. v. Cable &
Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998))
(internal quotation marks omitted); see also Exponential
Biotherapies, Inc. v. Houthoff Buruma N.V., 638
F.Supp.2d 1, 11 (D.D.C. 2009) (quoting Kopff v.
Battaglia, 425 F.Supp.2d 76, 89 (D.D.C. 2006) (noting
that jurisdictional discovery is warranted only if the
plaintiff “reasonably demonstrates that it can
supplement its jurisdictional allegations through
discovery” (internal quotation marks omitted)).
Issuance of Protective Orders
Rule of Civil Procedure 26 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). The party requesting the protective order 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);
see also Washington v. Thurgood Marshall Acad., 230
F.R.D. 18, 21 (D.D.C), on reconsideration, 232
F.R.D. 6 (D.D.C. 2005) (reconsidering a separate
proposition). Protective orders may 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). See generally United
States v. All Assets Held at Bank Julius Baer & Co.,
312 F.R.D. 16, 22 (D.D.C. 2015) (discussing accommodation of
confidentiality interests in discovery under Rule 26(c)).
Trial courts have broad discretion to issue and set the terms
of a protective order. 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).
Strike 3 Holdings' Request for Expedited
cause exists to permit Strike 3 Holdings to conduct limited
expedited discovery. Strike 3 Holdings must determine
Defendant's identity in order to serve Defendant and for
this matter to proceed. See Mem. in Supp. at 8-9;
see, e.g., Malibu Media, 177 F.Supp.3d at
557 (citing Arista Records LLC v. Does 1-19, 551
F.Supp.2d 1, 6 (D.D.C. 2008)) (finding good cause for
expedited discovery where “Defendant must be identified
before this suit can progress further”); see also
Strike 3 Holdings, LLC v. Doe, No. 17-cv-2347 (TJK),
2018 WL 385418, at *2 (D.D.C. Jan. 11, 2018). Strike 3
Holdings knows the IP address that Defendant has used, but
has no further identifying information. See Stalzer
Decl. ¶ 11; Fieser Decl. ¶ 7; Pasquale Decl.
¶¶ 7-10. RCN, as Defendant's ISP, is the
“only entity that can correlate the IP address ...