Strike 3 Holdings, LLC v. John Doe

Filing 12

ORDER granting in part and denying in part #11 Motion for Leave to File a Third-Party Subpoena. Signed by Magistrate Judge Kyle C. Dudek on 7/31/2022. (Dudek, Kyle)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v.

Case No.: 2:22-cv-407-JES-KCD

JOHN DOE,
Defendant.
/
ORDER 1
Before the Court is Plaintiff’s Motion for Leave to File a Third-Party
Subpoena (Doc. 11.) For the reasons below, the motion is granted in part and
denied in part.
I. Background
Plaintiff Strike 3 Holdings, LLC alleges copyright infringement against
John Doe, an unnamed defendant, for unlawfully reproducing and distributing
its adult films. (Doc. 1.) Strike 3 now moves for leave to serve a pre-discovery
subpoena on Doe’s Internet Service Provider (ISP), Comcast Cable, to learn
Doe’s identity. (Doc. 11.)

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II. Discussion
The Federal Rules of Civil Procedure generally preclude a party from
pursuing discover before the Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1). But
as usual there are exceptions. Relevant here, a party may pursue expedited
discovery by showing “good cause.” See Richardson v. Virtuoso Sourcing Grp.,
L.L.C., No. 8:15-CV-2198-T-17JSS, 2015 WL 12862517, at *1 (M.D. Fla. Oct.
27, 2015). 2 “In cases involving infringement via the internet, courts often
evaluate good cause by considering factors such as the concreteness of the
plaintiffs prima facie case of infringement; the specificity of the discovery
request; the absence of alternative means to obtain the subpoenaed
information; and the need for the subpoenaed information to advance the
claim.” Manny Film LLC v. Doe, No. 8:15-CV-507-T-36EAJ, 2015 WL
12850566, at *1 (M.D. Fla. May 18, 2015).
Strike 3 has shown good cause for expedited discovery. First, Strike 3
alleges a prima facie case of infringement. The complaint says that Strike 3
holds copyrights for several adult films that have been copied and distributed
by Doe without permission through a BitTorrent program. (Doc. 1.) Next,
Strike 3 has identified the specific information sought through the requested
discovery—Doe’s name and address—so that it may effectuate service of

Unless otherwise indicated, all subsequent history, internal quotation marks, citations, and
alterations have been omitted in this and later citations.
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process. Finally, Strike 3 has shown it has no way to identify Doe without
seeking his or her name from the ISP, here Comcast Cable. (Doc. 11.) Courts
have frequently concluded there is good cause for limited, early discovery in
such cases. And there is no reason the same result should not follow here. See,
e.g., Malibu Media, LLC v. Doe, No. 8:15-CV-2314-T-17TBM, 2015 WL
12856086, at *1 (M.D. Fla. Nov. 6, 2015).
One last item. The ISP subscriber at a given IP address may not be the
same individual who engaged in the infringing activity. The Court thus finds
it appropriate to enter the procedural safeguards below to address concerns
about identifying the wrong individual and subsequent undue embarrassment.
It is thus ORDERED:
1.

Strike 3’s Motion for Leave to File Third-Party Subpoena (Doc. 11)

is GRANTED IN PART AND DENIED IN PART;
2.

Strike 3 is permitted limited discovery to serve a subpoena to

determine the name and address of the Doe defendant to whom the internet
service provider assigned the relevant IP address or any other service provider
that is later identified in response to this initial subpoena;
3.

Strike 3 must attach a copy of this Order to the subpoena, and if

the internet service provider qualifies as a “cable operator” as defined in 47
U.S.C. § 522(5), then this Order must be considered an appropriate court order
under 47 U.S.C. § 551;

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4.

Any internet service provider that receives a subpoena pursuant

to this Order must not assess any charge to Strike 3 in advance of providing
the information requested. However, an internet service provider may elect to
charge a reasonable amount for the costs of production;
5.

Any information disclosed to Strike 3 in response to a subpoena

may be used solely for the purposes of protecting and enforcing Strike 3’s rights
as set forth in its complaint;
6.

Any internet service provider that receives a subpoena pursuant

to this Order shall provide written notice to the subscriber within twenty-one
(21) days of service, informing the subscriber that identifying information has
been sought pursuant to a Rule 45 subpoena and that the subscriber has the
right to challenge the subpoena in court. The internet service provider shall
additionally provide a copy of this Order with the written notification;
7.

The subscriber shall have fourteen (14) days from the date of the

written notification to move to quash or otherwise challenge Strike 3’s
subpoena. The subscriber must serve a copy of his or her motion upon both
Strike 3’s counsel and the internet service provider;
8.

The internet service provider shall produce the subpoenaed

information to Strike 3 no earlier than twenty-one (21) days after written
notification has been provided to the subscriber. If, however, the subscriber
moves to quash or otherwise challenges the subpoena, the internet service

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provider shall not disclose the subpoenaed information to Strike 3 until the
Court has resolved the subscriber’s challenge;
9.

Any internet service provider that receives a subpoena pursuant

to this Order shall preserve all subpoenaed information until either the
internet service provider has delivered such information to Strike 3 or the
Court renders a final determination that excuses the internet service
provider’s compliance with the subpoena;
10.

Strike 3 must also adhere to the following procedures:
i. In all written or oral communications with the Doe
defendant, Strike 3’s attorney(s) must identify themselves as
representing Strike 3 and must inform him or her that any
statements made may be used against him or her;
ii. If the Doe defendant contacts Strike 3, Strike 3 must inform
the Doe defendant of his or her right to hire legal counsel;
iii. At any time, the Doe defendant may inform Strike 3 by
phone or written communication that he or she does not
want to communicate further with Strike 3 until service is
perfected;

11.

Strike 3 must notify the Doe defendant, or, if represented, his or

her counsel, in writing of Strike 3’s intent to name and serve the Doe defendant
at least fourteen (14) days before seeking issuance of a summons.

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DONE & ORDERED in Fort Myers, Florida on July 31 2022.

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