MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Plaintiff
Strike 3 Holdings, LLC moves for certain expedited discovery
to uncover the identity of John Doe Defendant and
consequently facilitate Plaintiff's service of the [1]
Complaint. Doe Defendant, who is currently known to Plaintiff
only by internet protocol (“IP”) address
72.66.118.205, allegedly downloaded Plaintiff's
copyrighted content without authorization. Plaintiff proposes
to serve a third-party subpoena under Federal Rule of Civil
Procedure 45 on Doe Defendant's internet service provider
(“ISP”), Verizon Online LLC (Verizon Fios),
[1]
that would require Verizon Fios to provide certain
identifying information about Doe Defendant to Plaintiff.
Upon consideration of Plaintiff's [1] Complaint and [4]
Motion for Leave to Serve a Third Party Subpoena Prior to a
Rule 26(f) Conference, the relevant legal authorities, and
the record as a whole, the Court GRANTS
Plaintiff's Motion and shall permit limited, expedited
discovery at this time.
I.
BACKGROUND
A.
Factual Context
The
Court shall draw on Plaintiff's representations in the
[1] Complaint for the few factual details pertinent to this
motion. Plaintiff evidently owns the copyright to certain
adult motion pictures that Plaintiff distributes through
adult websites and DVDs. Compl. ¶¶ 2-3, 31. Doe
Defendant has allegedly infringed Plaintiff's copyright
protection by anonymously downloading and distributing
twenty-four of Plaintiff's movies using the BitTorrent
system. Id. ¶¶ 4-5, 23. While Doe
Defendant is known to Plaintiff only through IP address
72.66.118.205, this address is serviced by ISP Verizon Fios,
which Plaintiff has reason to believe possesses further
identifying information about Doe Defendant. See Id.
¶ 5.
B.
Procedural Posture
Plaintiff
filed the [1] Complaint in pursuit of damages under the
Copyright Act of 1976, as amended, 17 U.S.C. §§ 101
et seq. Compl. ¶ 6. Plaintiff presently moves
for entry of an order granting leave to serve a third-party
subpoena on Verizon Fios prior to a discovery conference
under Federal Rule of Civil Procedure 26(f), “so that
Plaintiff may learn Defendant's identity, investigate
Defendant's role in the infringement, and effectuate
service.” Pl.'s Mem. at 1-2. Plaintiff has
attempted to provisionally satisfy the Court of personal
jurisdiction over Doe Defendant by indicating that
geolocation technology pinpoints Doe Defendant's IP
address at a physical location in the District of Columbia.
Id. at 6. Should the Court grant Plaintiff's
Motion, Plaintiff suggests that the Court consider issuing a
protective order that would permit Doe Defendant to proceed
anonymously. Id. at 8.
II.
LEGAL STANDARD
A
plaintiff who seeks to conduct expedited discovery prior to
the Rule 26(f) conference in order to learn the identity of
putative defendants requests “what is in essence
jurisdictional discovery.” Exquisite Multimedia,
Inc. v. Does 1-336, No. 11-1976, 2012 WL 177885, at *1
(D.D.C. Jan. 19, 2012). Federal Rule of Civil Procedure 26(d)
explains that parties may generally seek discovery only after
a Rule 26(f) conference, “except . . . when authorized
. . . by court order.” Fed.R.Civ.P. 26(d)(1). The
United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has held that
“Rule 26 ‘vests the trial judge with 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)).
To
determine whether to authorize discovery prior to a Rule
26(f) conference in a particular case, courts in this Circuit
have applied a “good cause” standard. See AF
Holdings, LLC v. Cox Commc'ns Inc., 752 F.3d 990,
995 (D.C. Cir. 2014) (citing Fed.R.Civ.P. 26(b)(1));
Warner Bros. Records Inc. v. Does 1-6, 527 F.Supp.2d
1, 2 (D.D.C. 2007) (applying this standard in John Doe
copyright infringement case). In order 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, 752 F.3d at
995 (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) (recognizing that
“[j]urisdictional discovery . . . is justified only if
the plaintiff reasonably demonstrates that it can supplement
its jurisdictional allegations through discovery”)
(quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89
(D.D.C. 2006) (internal quotation marks omitted)).
“‘Mere conjecture or speculation' is not
enough” to justify jurisdictional discovery.
Exponential Biotherapies, Inc., 638 F.Supp.2d at
11-12 (quoting FC Inv. Grp. LC v. IFX Mkts., Ltd.,
529 F.3d 1087, 1094 (D.C. Cir. 2008)).
The
D.C. Circuit has specifically discussed the approach to
personal jurisdiction over anonymous defendants where a
plaintiff seeks jurisdictional discovery in a copyright
infringement action. “[U]nder the District of
Columbia's long-arm statute, which along with the Due
Process Clause governs this question, the only conceivable
way that personal jurisdiction might properly be exercised
over these Doe defendants is if they are residents of the
District of Columbia or at least downloaded the copyrighted
work in the District.” AF Holdings, LLC, 752
F.3d at 996 (citation omitted); see also D.C. Code
§ 13-422 (domicile in the District of Columbia);
id. § 13- 423(a)(3) (tortious injury in the
District of Columbia). “[G]eolocation services, which
enable anyone to estimate the location of Internet users
based on their IP addresses, ” are “sufficiently
accurate to provide at least some basis for determining
whether a particular subscriber might live in the District of
Columbia.” AF Holdings, LLC, 752 F.3d at 996;
see also Nu Image, Inc. v. Doe, 799 F.Supp.2d 34, 41
(D.D.C. 2011) (holding that “the 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, or within
a city located within 30 miles of the District of
Columbia”).
III.
DISCUSSION
Upon
consideration of the relevant legal authorities and
Plaintiff's pleadings, the Court finds that good cause
exists for Plaintiff's requested expedited discovery.
First, the Court shall be unable to administer any further
proceedings in this case absent identification of Doe
Defendant. See Arista Records LLC v. Does 1-19, 551
F.Supp. 2d. 1, 4, 6 (D.D.C. 2008) (Kollar-Kotelly, J.).
Second, Plaintiff has established a good faith basis for
believing that Doe Defendant is a District of Columbia
resident. In Plaintiff's [1] Complaint, Plaintiff alleges
that it “used IP address geolocation technology by
Maxmind Inc. (‘Maxmind'), an industry-leading
provider of IP address intelligence and online fraud
detection tools, to determine that Defendant's IP address
traced to a physical address in this District.” Compl.
¶ 9. Cf. AF Holdings, LLC, 752 F.3d at 996
(finding that plaintiff-appellee's “refusal to
cabin its suit and corresponding discovery requests to
individuals whom it has some realistic chance of successfully
suing in this district demonstrates that it has not
‘sought the information because of its relevance to the
issues' that might actually be litigated here”
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 353 (1978))). Accordingly, in an exercise of this
Court's broad discretion under Rule 26, the Court shall
grant Plaintiff leave to serve a Rule 45 subpoena on the ISP
identified in Exhibit A of the [1] Complaint, Verizon Fios,
for the purpose of identifying Doe Defendant's true
identity prior to a Rule 26(f) conference. See
Compl., Ex. A (containing file hashes associated with IP
address 72.66.118.205). Plaintiff is permitted to engage in
limited, expedited discovery in order to obtain the identity
of Doe Defendant by serving a Rule 45 subpoena on the ISP
Verizon Fios that seeks the true name and address of Doe
Defendant. See Pl.'s Mem. at 2. Any information
disclosed to Plaintiff in response to the Rule 45 subpoena
may be used by Plaintiff solely for the purpose of protecting
Plaintiff's rights as set forth in the [1] Complaint. If
and when the ISP is served with the subpoena, the ISP shall
give written notice, which may include e-mail notice, to the
subscriber in question within ten (10) business days. This
notice shall take place prior to releasing the
subscriber's identifying information to Plaintiff. If the
ISP and/or Doe Defendant want to move to quash the subpoena,
the party must do so before the return date of the subpoena,
which shall be no earlier than thirty (30) days from the date
of service. The ISP shall preserve any subpoenaed information
pending the resolution of any timely filed motion to quash.
Plaintiff shall provide the ISP with a copy of this
Memorandum Opinion and the accompanying Order with its
subpoena. On or before OCTOBER 8, 2018,
Plaintiff shall file a Status Report with the Court briefly
outlining its progress, including providing an expected
completion date for the discovery allowed by the accompanying
Order.
Plaintiff
suggests that issuance of a protective order may be
appropriate. See Pl.'s Mem. at 8 (citing
Malibu Media, LLC v. Doe, No. 15-CV-3504 (JFB)(SIL),
2016 WL 4444799, at *2 (E.D.N.Y. Aug. 23, 2016)). The
“protective order” that the magistrate judge
issued earlier in the Malibu Media litigation
appears to have consisted in pertinent part of procedures for
notice and contestation of the subpoena. See Id. The
Court has already provided above for Doe Defendant's (and
the ISP's) opportunity to challenge the subpoena in this
case, and the accompanying Order shall reiterate those
protections. It seems that the Malibu Media order
also expressly provided that the defendant could use the
window available for moving to quash the subpoena to also, or
instead, request to litigate that subpoena anonymously.
See Id. The Court finds that such an express
provision is not necessary here. The Court shall reevaluate
whether any further order protecting Doe Defendant's
identity is appropriate if Doe Defendant raises this issue
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