UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v. Civil Action No. 25-365 (TJK) JOHN DOE subscriber assigned IP address 216.15.14.70,
Defendant.
MEMORANDUM OPINION
Before the Court is Plaintiff’s Motion for Leave to Serve a Third-Party Subpoena Prior to
a Rule 26(f) Conference. ECF No. 5. For the reasons below, the Court will grant the motion.
I. Factual Background
Plaintiff Strike 3 Holdings, LLC owns the rights to certain adult entertainment films. ECF
No. 1 (“Compl.”) ¶ 2. Strike 3 alleges that Defendant, currently identified as John Doe subscriber
assigned IP address 216.15.14.70, has been downloading and distributing these films using a
BitTorrent protocol in violation of the Copyright Act, 17 U.S.C. §§ 101 et seq. See Compl. ¶¶ 4-
6, 51–56. According to Strike 3, it has used geolocation technology to trace the IP address used
by Defendant to a physical address in the District of Columbia. Id. ¶ 9.
Strike 3 moves for leave to file a third-party subpoena on Defendant’s internet service
provider (“ISP”) to “learn Defendant’s identity, investigate Defendant’s role in the infringement,
and effectuate service.” ECF No. 6 at 2. The subpoena, Strike 3 says, “will only demand the true
name and address of Defendant.” Id. at 3. And Strike 3 will use the information it receives only
to prosecute claims in its complaint. Id. II. Legal Standard
A party ordinarily “may not seek discovery from any source” before a conference under
Federal Rule of Civil Procedure 26(f) unless a “court order” permits such early discovery. Fed. R.
Civ. P. 26(d)(1). When a case “involve[s] as-yet-unknown defendants,” this kind of order is “the
only potential avenue for discovery.” Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203, 1207 (D.C.
Cir. 2020) (citation omitted). And a “court’s discretion to order discovery”—“cabined by Rule
26(b)’s general limitations on the scope of discovery”—governs both pre- and post-conference
discovery. Id. In turn, Rule 26(b) provides that “a party may obtain discovery” of “nonprivileged
materials that are relevant to the party’s claim or defense and proportional to the needs of the case.”
Id. (internal quotation marks and citation omitted). The proportionality inquiry accounts for “the
parties’ relative access to relevant information and the importance of discovery in resolving the
issues at stake in the action.” Id. (internal quotation marks, citation, and brackets omitted).
A plaintiff also “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[s].’” AF Holdings, LLC v. Does
1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014) (alteration in original) (quoting Caribbean Broad.
Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). “The Copyright Act
does not provide for the exercise of personal jurisdiction over alleged infringers on any basis.”
Malibu Media, LLC v. Doe, 177 F. Supp. 3d 554, 556–57 (D.D.C. 2016) (citing Exquisite
Multimedia, Inc. v. Does 1-336, No. 11-cv-1976 (RWR/JMF), 2012 WL 177885, at *2 (D.D.C.
Jan. 19, 2012)). Thus, a plaintiff “must predicate this Court’s jurisdiction over the infringers on
the reach of District of Columbia law.” Id. Under the District of Columbia’s long-arm statute,
“the only conceivable way that personal jurisdiction might properly be exercised” is if Defendant
2 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 (citing D.C. Code § 13-423(3), (4)).
III. Analysis
Strike 3 has shown that this case warrants the limited early discovery that it requests. As
for the importance of that discovery, “this suit cannot move forward without [Strike 3] first being
able to identify Defendant so that service can be effected.” Malibu Media, LLC v. Doe, No. 16-
cv-639 (RC/AK), 2016 WL 1698263, at *2 (D.D.C. Apr. 27, 2016). So the requested discovery is
Strike 3’s only chance to move this lawsuit beyond the starting gate. And as for Strike 3’s access
to the information that the third-party subpoena would target, it has none—and, according to its
declarant, no alternatives beyond the ISP. See ECF No. 6-1 ¶ 28. The requested material is also
relevant to Strike 3’s claims; Strike 3 alleges that a user at this IP address has been infringing its
copyrighted works, and it needs information about the user to prosecute its claims. See Compl.
¶ 5. Given that relevance, the importance of the requested discovery, and the inability to otherwise
obtain the information, the Court finds that some early discovery is appropriate.
Strike 3 has also established a good-faith belief that this Court has personal jurisdiction
over Defendant. Using geolocation technology, Strike 3 has traced Defendant’s IP address to a
physical location within the District of Columbia. ECF No. 6 at 9. The D.C. Circuit “has suggested
that reliance on ‘geolocation services’ of this sort is sufficient to justify a ‘good faith belief’ that a
district court has personal jurisdiction over unknown defendants.” Malibu Media, LLC v. Doe,
No. 15-cv-986 (RDM), 2015 WL 5173890, at *2 (D.D.C. Sept. 2, 2015) (quoting A.F. Holdings,
752 F.3d at 996); see also Malibu Media, 2016 WL 1698263, at *2 (“Using a geolocation service
that estimates that location of Internet users based on their IP addresses is sufficient to demonstrate
a good faith belief that the court has personal jurisdiction over the defendant.”); Nu Image, Inc. v.
3 Does 1-23,322, 799 F. Supp. 2d 34, 41 (D.D.C. 2011) (“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 . . . .”) (emphasis in original). Thus, in its “broad
discretion 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)), the Court authorizes Strike 3
to serve limited discovery on Defendant’s ISP.
IV. Protective Order
Strike 3 notes that in similar cases involving adult content, some courts “have found it
appropriate to issue a protective order establishing procedural safeguards,” and it encourages this
Court to do so here if appropriate. ECF No. 6 at 10–11. The Court finds that a protective order is
warranted. “The fact that a copyrighted work was illegally downloaded from a certain IP address
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v. Civil Action No. 25-365 (TJK) JOHN DOE subscriber assigned IP address 216.15.14.70,
Defendant.
MEMORANDUM OPINION
Before the Court is Plaintiff’s Motion for Leave to Serve a Third-Party Subpoena Prior to
a Rule 26(f) Conference. ECF No. 5. For the reasons below, the Court will grant the motion.
I. Factual Background
Plaintiff Strike 3 Holdings, LLC owns the rights to certain adult entertainment films. ECF
No. 1 (“Compl.”) ¶ 2. Strike 3 alleges that Defendant, currently identified as John Doe subscriber
assigned IP address 216.15.14.70, has been downloading and distributing these films using a
BitTorrent protocol in violation of the Copyright Act, 17 U.S.C. §§ 101 et seq. See Compl. ¶¶ 4-
6, 51–56. According to Strike 3, it has used geolocation technology to trace the IP address used
by Defendant to a physical address in the District of Columbia. Id. ¶ 9.
Strike 3 moves for leave to file a third-party subpoena on Defendant’s internet service
provider (“ISP”) to “learn Defendant’s identity, investigate Defendant’s role in the infringement,
and effectuate service.” ECF No. 6 at 2. The subpoena, Strike 3 says, “will only demand the true
name and address of Defendant.” Id. at 3. And Strike 3 will use the information it receives only
to prosecute claims in its complaint. Id. II. Legal Standard
A party ordinarily “may not seek discovery from any source” before a conference under
Federal Rule of Civil Procedure 26(f) unless a “court order” permits such early discovery. Fed. R.
Civ. P. 26(d)(1). When a case “involve[s] as-yet-unknown defendants,” this kind of order is “the
only potential avenue for discovery.” Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203, 1207 (D.C.
Cir. 2020) (citation omitted). And a “court’s discretion to order discovery”—“cabined by Rule
26(b)’s general limitations on the scope of discovery”—governs both pre- and post-conference
discovery. Id. In turn, Rule 26(b) provides that “a party may obtain discovery” of “nonprivileged
materials that are relevant to the party’s claim or defense and proportional to the needs of the case.”
Id. (internal quotation marks and citation omitted). The proportionality inquiry accounts for “the
parties’ relative access to relevant information and the importance of discovery in resolving the
issues at stake in the action.” Id. (internal quotation marks, citation, and brackets omitted).
A plaintiff also “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[s].’” AF Holdings, LLC v. Does
1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014) (alteration in original) (quoting Caribbean Broad.
Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). “The Copyright Act
does not provide for the exercise of personal jurisdiction over alleged infringers on any basis.”
Malibu Media, LLC v. Doe, 177 F. Supp. 3d 554, 556–57 (D.D.C. 2016) (citing Exquisite
Multimedia, Inc. v. Does 1-336, No. 11-cv-1976 (RWR/JMF), 2012 WL 177885, at *2 (D.D.C.
Jan. 19, 2012)). Thus, a plaintiff “must predicate this Court’s jurisdiction over the infringers on
the reach of District of Columbia law.” Id. Under the District of Columbia’s long-arm statute,
“the only conceivable way that personal jurisdiction might properly be exercised” is if Defendant
2 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 (citing D.C. Code § 13-423(3), (4)).
III. Analysis
Strike 3 has shown that this case warrants the limited early discovery that it requests. As
for the importance of that discovery, “this suit cannot move forward without [Strike 3] first being
able to identify Defendant so that service can be effected.” Malibu Media, LLC v. Doe, No. 16-
cv-639 (RC/AK), 2016 WL 1698263, at *2 (D.D.C. Apr. 27, 2016). So the requested discovery is
Strike 3’s only chance to move this lawsuit beyond the starting gate. And as for Strike 3’s access
to the information that the third-party subpoena would target, it has none—and, according to its
declarant, no alternatives beyond the ISP. See ECF No. 6-1 ¶ 28. The requested material is also
relevant to Strike 3’s claims; Strike 3 alleges that a user at this IP address has been infringing its
copyrighted works, and it needs information about the user to prosecute its claims. See Compl.
¶ 5. Given that relevance, the importance of the requested discovery, and the inability to otherwise
obtain the information, the Court finds that some early discovery is appropriate.
Strike 3 has also established a good-faith belief that this Court has personal jurisdiction
over Defendant. Using geolocation technology, Strike 3 has traced Defendant’s IP address to a
physical location within the District of Columbia. ECF No. 6 at 9. The D.C. Circuit “has suggested
that reliance on ‘geolocation services’ of this sort is sufficient to justify a ‘good faith belief’ that a
district court has personal jurisdiction over unknown defendants.” Malibu Media, LLC v. Doe,
No. 15-cv-986 (RDM), 2015 WL 5173890, at *2 (D.D.C. Sept. 2, 2015) (quoting A.F. Holdings,
752 F.3d at 996); see also Malibu Media, 2016 WL 1698263, at *2 (“Using a geolocation service
that estimates that location of Internet users based on their IP addresses is sufficient to demonstrate
a good faith belief that the court has personal jurisdiction over the defendant.”); Nu Image, Inc. v.
3 Does 1-23,322, 799 F. Supp. 2d 34, 41 (D.D.C. 2011) (“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 . . . .”) (emphasis in original). Thus, in its “broad
discretion 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)), the Court authorizes Strike 3
to serve limited discovery on Defendant’s ISP.
IV. Protective Order
Strike 3 notes that in similar cases involving adult content, some courts “have found it
appropriate to issue a protective order establishing procedural safeguards,” and it encourages this
Court to do so here if appropriate. ECF No. 6 at 10–11. The Court finds that a protective order is
warranted. “The fact that a copyrighted work was illegally downloaded from a certain IP address
does not necessarily mean that the owner of that IP address was the infringer.” Media Prods., Inc.
v. Does 1-26, No. 12-cv-3719 (HB), 2012 WL 2190613, at *1 (S.D.N.Y. June 12, 2012). “Indeed,
the true infringer could just as easily be a third party who had access to the internet connection,
such as a son or daughter, houseguest, neighbor, or customer of a business offering an internet
connection,” and “[t]here is a real risk that defendants might be falsely identified and forced to
defend themselves against unwarranted allegations.” Id. There is also a risk that “the innocent
defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination
of publicity surrounding unfounded allegations.” Id. In sum, absent a protective order, “there is
no reason to conclude that adequate protections exist to safeguard the individuals or entities
subscribing to the implicated IP address[] against the danger of ‘annoyance, embarrassment,
oppression, or undue burden or expense.’” In re Malibu Media Adult Film Copyright Infringement
4 Cases, Nos. 15-cv-1855 (SJF) (SIL) et al., 2015 WL 3605834, at *4 (E.D.N.Y. June 8, 2015)
(quoting Fed. R. Civ. P. 26(c)).
Given these considerations, Strike 3 will be allowed to serve early discovery by serving a
Rule 45 subpoena on the identified ISP that seeks information sufficient to identify John Doe
subscriber assigned IP address 216.15.14.70. But if and when the ISP is served with a subpoena,
Strike 3 must provide the ISP with a copy of this Memorandum Opinion and the accompanying
Order with its subpoena. The ISP must give written notice, which may include email notice, and
must include a copy of the subpoena, this Memorandum Opinion, and the accompanying Order, to
the subscriber in question at least twenty-one (21) business days prior to releasing the subscriber’s
identifying information to Strike 3. Any motion to quash the subpoena must be filed before the
return date of the subpoena, which shall be no earlier than forty-five (45) calendar days from the
date of service. The ISP must preserve any subpoenaed information pending the resolution of any
timely-filed motion to quash. Any information disclosed to Strike 3 in response to a Rule 45
subpoena may be used by Strike 3 solely for the purpose of protecting its rights as stated in the
Complaint. See Compl. If Defendant, once identified, wishes to proceed anonymously in this
litigation, he must make that request through a motion for a protective order. See Fed. R. Civ. P.
26(c). Any such motion must be filed within thirty (30) calendar days from the date Defendant
receives written notice of the subpoena from the ISP. And to preserve Defendant’s ability to seek
a protective order, Strike 3 shall refrain from identifying Defendant on the public docket or from
otherwise disclosing Defendant’s identity for thirty (30) calendar days after receiving any
identifying information from the ISP. By March 30, 2025, Strike 3 shall file a status report with
the Court outlining the progress of the discovery authorized by this Memorandum Opinion and the
accompanying Order.
5 V. Conclusion
For the reasons set forth above, the Court will grant Plaintiff’s Motion for Leave to Serve
a Third-Party Subpoena Prior to a Rule 26(f) Conference, ECF No. 5. A separate order will issue.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: February 27, 2025