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LLC v. Doe

United States District Court, District of Columbia

May 11, 2018

JOHN DOE, Subscriber IP Address Defendant.



         Pending 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.[1] 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.


         Strike 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.

         Strike 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.


         A. Expedited Jurisdictional Discovery

         Federal 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).

         A 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)).

         B. Issuance of Protective Orders

         Federal 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).


         A. Strike 3 Holdings' Request for Expedited Discovery

         Good 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 ...

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