Strike 3 Holdings, LLC v. Doe

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STRIKE 3 HOLDINGS, LLC,

Plaintiff,

v. No. 24-cv-3552-RBW-MAU

JOHN DOE subscriber assigned IP address 108.18.47.107,

Defendant.

MEMORANDUM OPINION

Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Motion for Leave to

Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (“Motion”). ECF No. 4. For the

reasons set forth below, Strike 3’s Motion is GRANTED.

BACKGROUND

Strike 3 has sued Defendant John Doe (“Doe”) for copyright infringement in violation of

the Copyright Act, 17 U.S.C. §§ 101 et seq. ECF No. 1 ¶¶ 47–52. For purposes of this Motion,

the following allegations from Strike 3’s Complaint are taken as true. See generally Strike 3

Holdings, LLC v. Doe, 964 F.3d 1203, 1210–11 (D.C. Cir. 2020). Strike 3 owns the copyrights to

certain adult entertainment films. ECF No. 1 ¶ 2. Strike 3 has identified Doe as the subscriber

assigned to Internet Protocol (“IP”) address 108.18.47.107. Id. ¶ 12. Doe used a BitTorrent

protocol to download and distribute twenty-five movies for which Strike 3 holds copyrights. Id.

¶¶ 4–6; see also ECF No. 1-1 (listing copyright information for each work). Strike 3 used its

infringement detection system, “VXN Scan,” to capture BitTorrent transactions from Doe’s IP

address. ECF No. 1 ¶¶ 27–39; see also ECF Nos. 5-1 ¶¶ 13–18; 5-2 ¶ 41. Additionally, Strike 3

used IP address geolocation technology from the company Maxmind, Inc. to trace Doe’s IP address

1 to a location in the District of Columbia. ECF No. 1 ¶ 9; see also ECF No. 5-2 ¶¶ 77–79.

Pursuant to Federal Rule of Civil Procedure 26(d), Strike 3 moves for leave to serve a third-

party subpoena on Verizon Fios (“Verizon”), Doe’s Internet Service Provider (“ISP”). ECF No.

4. Strike 3 seeks Doe’s name and address to investigate Doe’s role in the alleged infringement

and to effectuate service. ECF No. 5 at 2. 1 According to Strike 3, it cannot pursue its lawsuit

without this information. Id. at 3. Because this matter involves adult content, Strike 3 also

encourages the Court to issue a protective order. Id. at 10–11.

ANALYSIS

I. The Discovery Strike 3 Requests is Both Relevant and Proportional to its Copyright Infringement Claim.

A. Legal Standard

Under Rule 26(d)(1), a party “may not seek discovery from any source” prior to a Rule

26(f) conference except by court order. Fed. R. Civ. P. 26(d)(1). An order is “the only potential

avenue for discovery” when the defendant is unknown and the plaintiff needs identifying

information from a third party to serve the complaint. Strike 3 Holdings, 964 F.3d at 1207 (internal

quotation marks and citation omitted). Although the Court has broad discretion to order discovery,

the Court is bound by Rule 26(b)(1). See Fed. R. Civ. P. 26(b)(1) (setting forth limitations on

scope of discovery); Strike 3 Holdings, 964 F.3d at 1207. Thus, the Court must review the

allegations to determine if the plaintiff seeks materials that are: (1) “relevant to any party’s claim

or defense”; and (2) “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); see Strike 3

Holdings, 964 F.3d at 1210; AF Holdings, LLC v. Does 1–1058, 752 F.3d 990, 995 (D.C. Cir.

2014). Although the burden is not “onerous,” the movant must show it is entitled to the discovery.

Aljabri v. bin Salman, 106 F.4th 1157, 1164–65 (D.C. Cir. 2024).

1 Citations are to the page numbers in the ECF headers.

2 B. Discussion

Strike 3 argues that it is entitled to limited pre-conference discovery from Verizon because

the information Strike 3 seeks is: (1) relevant to its copyright infringement claim; and (2)

proportional to the needs of the case. ECF No. 5 at 6–10. Strike 3 is correct.

1. Relevance

Discovery is relevant if it bears on “any issue that is or may be in the case.” Oppenheimer

Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also AF Holdings, 752 F.3d at 995. Courts

often consider two related requirements. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 24-cv-1166,

2024 WL 3638346, at *2–3 (D.D.C. Aug. 2, 2024). First, the plaintiff must show that this

discovery “can be expected to uncover the defendant’s identity” to allow the plaintiff to prosecute

its claims. Strike 3 Holdings, 964 F.3d at 1210. Second, the plaintiff must demonstrate a good

faith belief that the plaintiff will be able to use this discovery to establish personal jurisdiction.

See Aljabri, 106 F.4th at 1164–65; AF Holdings, 752 F.3d at 996–97 (holding no good faith belief

of personal jurisdiction over 1,058 John Does existed without a showing that subscribers might be

located in the District). Strike 3 has met both requirements.

First, Strike 3 has shown that a third-party subpoena on Verizon will likely uncover Doe’s

identity. See Strike 3 Holdings, 964 F.3d at 1210. Strike 3 used its infringement detection system

to determine that a user at Doe’s IP address downloaded and distributed twenty-five movies. ECF

No. 1 ¶¶ 27–39. With the subscriber’s name and address, Strike 3 will be able to investigate and

prosecute its claim. ECF No. 5 at 8–9; see Strike 3 Holdings, 964 F.3d at 1210; see, e.g., Strike 3

Holdings, 2024 WL 3638346, at *2 (“Plaintiff is unable to prosecute its claims without knowing

the identity of the alleged infringer; thus, the information it seeks to obtain from Verizon [Internet

Services] clearly bears directly on, and is relevant to Plaintiff’s claim.” (alteration in original)

(internal quotation marks and citation omitted)). This is not to say that Doe is the infringer. Strike

3 3 has conceded that another individual may have used Doe’s IP address. ECF No. 5 at 6. The

strength of the case against Doe, however, is not paramount at this stage. See Strike 3 Holdings,

964 F.3d at 1210. Strike 3 has met its burden to show that it should have the opportunity to name

the defendant. Id.

Second, Strike 3 has demonstrated a good faith belief that, with Doe’s identity, Strike 3

will be able to establish personal jurisdiction. See Aljabri, 106 F.4th at 1164–65. The “only

conceivable way” for personal jurisdiction to exist over unknown defendants “is if they are

residents 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(a)(3)–(4)). This Circuit has held that a

good faith belief exists when a plaintiff alleges it has used geolocation technology to tie an IP

address to a user in the District of Columbia. See Strike 3 Holdings, 964 F.3d at 1210–11. Strike

3 has done exactly that. See ECF No. 1 ¶¶ 8–9 (alleging that geolocation technology traced Doe’s

IP address to a physical address in the District); id. ¶¶ 27–39 (alleging that VXN Scan detected

twenty-five BitTorrent transactions from Doe’s IP address); see, e.g., Strike 3 Holdings, 2024 WL

3638346, at *2 (finding good faith belief when plaintiff used geolocation technology to tie a single

IP address to a physical location in D.C.); Malibu Media, LLC v. Doe, 316 F. Supp. 3d 120, 123

(D.D.C. 2018) (same).

2. Proportionality

A subpoena on Verizon is “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).

Courts in this context often focus on “the parties’ relative access to relevant information” and “the

importance of the discovery in resolving the issues [at stake in the action].” Strike 3 Holdings,

964 F.3d at 1207 (alteration in original) (quoting Fed. R. Civ. P. 26(b)). Both factors weigh in

favor of granting Strike 3’s Motion.

4 First, Strike 3 only has Doe’s IP address, whereas Verizon can identify Doe based on that

IP address. ECF No. 5-1 ¶ 28; see also ECF Nos. 1 ¶¶ 5, 12; 5 at 7. The “asymmetry here is

extreme.” Strike 3 Holdings, 2024 WL 3638346, at *4 (citations omitted); see Fed. R. Civ. P.

26(b) advisory committee’s note to 2015 amendment (noting courts often consider when cases

involve an “information asymmetry” between parties). Second, Doe’s identity is clearly important

to Strike 3’s claim. See ECF No. 5 at 8 (“Strike 3 simply seeks to ascertain the identity of the

subscriber so that it can conduct a further investigation into who—whether it is subscriber [sic] or

someone else—infringed its copyrights.”); see, e.g., Strike 3 Holdings, 2024 WL 3638346, at *3

(“Plaintiff cannot pursue its claims without first identifying Defendant, and a third-party subpoena

represents the only viable path to doing so.”); cf. Strike 3 Holdings, 964 F.3d at 1210 (describing

plaintiff to be properly seeking “the discovery necessary to reveal the defendant’s identity and to

begin litigating [the plaintiff’s] infringement claims”).

II. Good Cause Exists to Issue a Temporary Protective Order.

Under Rule 26(c)(1), a court “may, for good cause, 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 Court has broad discretion to issue a protective order. See Seattle Times Co. v.

Rhinehart, 467 U.S. 20, 36 (1984).

B. Discussion

Strike 3 encourages the Court to allow the defendant to proceed anonymously. ECF No. 5

at 10–11. At this stage, good cause exists to issue a temporary protective order. Fed. R. Civ. P.

26(c)(1). There is a risk that Strike 3 could falsely identify the owner of the IP address as the

infringer. See, e.g., Strike 3 Holdings, 2024 WL 3638346 at *2 (“[T]he true infringer could just

as easily be a third party who had access to the internet connection, such as a son or daughter,

5 houseguest, neighbor, or customer of a business offering an internet connection.” (citation

omitted)). Strike 3 has acknowledged this risk. ECF No. 5 at 6. Because Strike 3’s allegations

involve illegally downloading and distributing adult content, procedural safeguards are necessary

to protect third parties from “annoyance” or “embarrassment.” Fed. R. Civ. P. 26(c)(1); see, e.g.,

Strike 3 Holdings, 2024 WL 3638346 at *4–5 (finding a protective order necessary because false

identification could lead to an innocent person having to defend against unwarranted allegations

or unjustly settle to avoid publicity). At the same time, “defendants charged with salacious conduct

are not automatically permitted to remain anonymous.” Strike 3 Holdings LLC v. Doe, No. 22-cv-

663, 2023 WL 1861077, at *5 (D.D.C. Feb. 9, 2023). Rather, given the public’s interest in these

proceedings, the default rule is that a defendant is not anonymous. Id.

In light of these considerations, a temporary protective order will balance the need to

protect a potentially innocent defendant with the public’s interest in access to litigation. The order

will ensure the subscriber remains anonymous until they have the opportunity to move to quash

the subpoena or for a protective order. See, e.g., Strike 3 Holdings LLC v. Doe, No. 25-cv-363,

2025 WL 637380, at *3 (D.D.C. Feb. 27, 2025) (describing similar approach). These requirements

are outlined in the Order accompanying this Memorandum Opinion.

III. Conclusion

For the foregoing reasons, Strike 3’s Motion is GRANTED.

SO ORDERED.

Date: May 9, 2025

___________________________________ MOXILA A. UPADHYAYA UNITED STATES MAGISTRATE JUDGE