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. 18-1431 (CKK) JOHN DOE subscriber assigned IP address 72.66.118.205, Defendant.

MEMORANDUM OPINION (August 8, 2018)

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

1 Plaintiff refers in certain places to Defendant’s ISP as “Verizon Online LLC (Verizon Fios).” Compl., ECF No. 1 (“Compl.”), ¶ 5; Mem. of P&A in Supp. of Pl.’s Mot. for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference, ECF No. 4-5 (“Pl.’s Mem.”), at 1. Elsewhere, Plaintiff refers simply to “Verizon Fios.” Compl., Ex. A; [Proposed] Order on Mot. for Leave to Serve Third Party Subpoena Prior to a Rule 26(f) Conference, ECF No. 4-6, at 1. The Court shall refer hereinafter to “Verizon Fios” in this Memorandum Opinion. However, the Court takes no position on whether Plaintiff is conflating separate entities, and if so, whether it does so appropriately. 1 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.

2 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.

3 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

4 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

5 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 after Plaintiff serves the

subpoena on the ISP. The Court finds, in the meantime, that the opportunity for the ISP and/or

Doe Defendant to move to quash the subpoena provides Doe Defendant with comparable

protection that is more appropriate at this stage in the proceedings.

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6 IV. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has made a showing of “good

cause” for the expedited discovery it seeks. Accordingly, the Court shall GRANT Plaintiff’s [4]

Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference.

An appropriate Order accompanies this Memorandum Opinion.

Dated: August 8, 2018

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge