Strike 3 Holdings, LLC v. Doe

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
STRIKE 3 HOLDINGS, LLC, )
)
Plaintiff, )
)
v. ) Civil Action No: 18-00810 (KBJ/RMM)
)
JOHN DOE, )
Subscriber IP Address 66.44.31.160 )
)
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
0F
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-three 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.”) ¶¶ 4–7, 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 11.
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
66.44.31.160. 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: 2018.05.14
17:05:18 -04'00'
Dated: May 14, 2018
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
9