Strike 3 Holdings, LLC v. Doe

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) STRIKE 3 HOLDINGS, LLC, ) ) Plaintiff, ) ) v. ) Civil Action No: 18-00808 (KBJ/RMM) ) JOHN DOE, ) Subscriber IP Address 66.44.113.18 ) ) Defendant. ) )

MEMORANDUM OPINION

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.

BACKGROUND

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

1 Page numbers cited in this Memorandum Opinion reference the ECF page numbers present in the header of the document. 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.

LEGAL STANDARD

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.

2 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 . . .

3 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).

ANALYSIS

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 to its

subscriber and identify Defendant.” Pasquale Decl. ¶ 10; see also Stalzer Decl. ¶ 11. Thus a

subpoena directed at RCN appears to be the only means for Strike 3 Holdings to discover

Defendant’s identity.

The Court also must evaluate whether a good faith basis exists to believe that this Court

will have personal jurisdiction over Defendant. Strike 3 Holdings’ claims arise under the

Copyright Act, 17 U.S.C. § 101 et seq., which “does not provide for the exercise of personal

4 jurisdiction over alleged infringers on any basis.” Malibu Media, 177 F. Supp. 3d at 556 (citing

Exquisite Multimedia, Inc., 2012 WL 177885, at *2). Accordingly, Strike 3 Holdings must

establish this Court’s personal jurisdiction over Defendant “on the reach of District of Columbia

law.” Id.; see FED. R. CIV. P. 4(k)(1)(A). District of Columbia law confers personal jurisdiction

“over a person domiciled in, organized under the laws of, or maintaining his or its principal place

of business in, the District of Columbia as to any claim for relief.” D.C. CODE § 13-422.

Additionally, the District of Columbia long-arm statute provides, in relevant part, that a D.C.

court may exercise personal jurisdiction “over a person, who acts directly or by an agent, as to a

claim for relief arising from the person’s — (3) causing tortious injury in the District of

Columbia by an act or omission in the District of Columbia.” D.C. CODE § 13-423(a)(3); see

also Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 38 n.3 (D.D.C. 2011) (noting that it is

“well settled in this jurisdiction that a claim for copyright infringement sounds in tort.”).

Applying those principles to a copyright infringement case such as this, “the only conceivable

way that personal jurisdiction might properly be exercised” over Defendant 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.

Strike 3 Holdings persuasively argues that a good faith basis exists to believe that this

Court would have personal jurisdiction over Defendant. “[G]eolocation services” may be used to

“estimate the location of Internet users based on their IP addresses.” AF Holdings, 752 F.3d at

996; see also Nu Image, Inc., 799 F. Supp. 2d at 40 (“Plaintiff can establish such a good faith

basis for residence or personal jurisdiction by utilizing geolocation services that are generally

available to the public to derive the approximate location of the IP addresses identified for each

putative defendant.”). Strike 3 Holdings used geolocation technology to trace Defendant’s IP

5 address to a physical address in the District of Columbia. See Mem. in Supp. at 9; Compl. ¶ 9.

That provides a basis to believe that Defendant may be located in the District of Columbia, or at

a minimum downloaded the allegedly infringing files in the District of Columbia.

For the foregoing reasons, Strike 3 Holdings has demonstrated that good cause exists to

allow expedited discovery, and that it is reasonably likely that this Court will have personal

jurisdiction over Defendant. Accordingly, the Court will permit Strike 3 Holdings to serve a

Rule 45 subpoena upon the ISP, RCN, subject to the conditions identified below. See infra Part

C.

B. Strike 3 Holdings’ Request for a Protective Order

Strike 3 Holdings also “encourages” the Court to issue a “protective order establishing

procedural safeguards such as allowing a defendant to proceed anonymously” in this matter.

Mem. in Supp. at 11. The party requesting a protective order bears the burden of showing good

cause for its issuance. See Alexander, 186 F.R.D. at 75. Strike 3 Holdings has failed to meet this

burden.

Strike 3 Holdings has a policy “to keep confidential the identity of not only [its]

subscribers, but even those [it is] pursuing for copyright infringement,” based on its desire to

protect the consumer’s personal choice to view adult content. Mot., Ex. A (“Lansky Decl.”)

¶ 33, ECF No. 3-1. However, Strike 3 Holdings has not proffered any facts that would indicate

that Defendant wishes to remain anonymous, or that there is any reason to fear that Defendant

may have been misidentified as having downloaded or accessed adult content. See generally

Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y 2012) (issuing protective order

and citing, inter alia, concern that “many of the names and addresses produced in response to

Plaintiff’s discovery request will not in fact be those of the individuals who downloaded” the

6 copyrighted adult video). Strike 3 Holdings simply notes that other courts have issued a

protective order when appropriate and does not explain why such an order would be appropriate

in this case. See Mem. in Supp. at 11. Therefore, Strike 3 Holdings has not made “a specific

demonstration of facts in support of the request” for a protective order, and instead relies on

“conclusory or speculative statements about the need for a protective order and the harm which

will be suffered without one.” Alexander, 186 F.R.D. at 75; see also Huthnance v. District of

Columbia, 255 F.R.D. 285, 296 (D.D.C. 2008).

Once Defendant receives notice of the subpoena and this litigation, Defendant may well

assert an interest in anonymity that would warrant the issuance of a protective order. However,

the filings currently on the record do not establish good cause for issuing such an order.

Accordingly, the Court declines Strike 3 Holdings’ request for a protective order. However, to

avoid prejudicing Defendant’s ability to seek such an order in the future, the Court will restrict

Strike 3 Holdings’ disclosure of the Defendant’s name for a limited period of time as explained

below. See infra Part C.

C. Procedures Governing Expedited Discovery

For the foregoing reasons, the Court will permit Strike 3 Holdings to serve a Rule 45

subpoena upon RCN, in order to obtain the identity of the individual associated with IP address

66.44.113.18. The subpoena may seek identifying information including the individual’s name,

current and permanent address, and e-mail address. Strike 3 Holdings shall provide the ISP with

a copy of this Memorandum Opinion and the accompanying Order with its subpoena. Any

information disclosed to Strike 3 Holdings in response to a Rule 45 subpoena may be used by

Strike 3 Holdings solely for the purpose of protecting Strike 3 Holdings’ rights as set forth in the

Complaint.

7 If and when the ISP is served with a subpoena, the ISP shall give written notice, which

may include e-mail notice, to the subscriber in question at least fourteen (14) days prior to

releasing the subscriber’s identifying information to Strike 3 Holdings. If the ISP and/or

Defendant would like to move to quash the subpoena, the party must do so before the return date

of the subpoena, which shall be no earlier than forty-five (45) days from the date of service. The

ISP shall preserve any subpoenaed information, pending the resolution of any timely filed

motion to quash.

If the Defendant wishes to proceed anonymously in this litigation, Defendant shall make

that request through a motion for protective order. Any such motion shall be filed within thirty

(30) days of when Defendant receives written notice of the subpoena from the ISP. The motion

requesting anonymity may be filed under seal if it contains information identifying the

Defendant. If the motion is filed under seal, or is not filed electronically, Defendant shall serve a

copy upon counsel for Strike 3 Holdings.

To preserve Defendant’s ability to seek a protective order, Strike 3 Holdings shall refrain

from identifying Defendant’s name on the public docket for a period of thirty (30) days after

receiving the subscriber’s identifying information from the ISP. On or before June 30, 2018,

Strike 3 Holdings shall file a status report with the Court briefly outlining its progress, including

providing an expected completion date of the discovery allowed by the accompanying Order and

addressing whether Strike 3 Holdings has received any formal or informal requests for

anonymity from Defendant.

8 CONCLUSION

For the foregoing reasons, the Court hereby grants Plaintiff’s Motion for Leave to Serve a

Third Party Subpoena Prior to a Rule 26(f) Conference, ECF No. 3, but declines to issue a

protective order. A separate Order will accompany this Memorandum Opinion.

Digitally signed by Robin M. Meriweather Date: 2018.05.11 14:47:47 -04'00' Dated: May 11, 2018 ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE