Strike 3 Holdings, LLC v. Doe subscriber assigned IP Address 184.88.205.223

Filing 8

ORDER granting 7 Plaintiff's Motion for Leave to Serve a Third-Party Subpoena Prior to Rule 26(f) Conference. Signed by Magistrate Judge Leslie Hoffman Price on 11/14/2023. (MKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v.

Case No: 6:23-cv-2055-GAP-LHP

JOHN DOE SUBSCRIBER ASSIGNED
IP ADDRESS 184.88.205.223,
Defendant

ORDER
This cause came on for consideration without oral argument on the following
motion filed herein:
MOTION: PLAINTIFF’S MOTION FOR LEAVE TO SERVE A
THIRD-PARTY SUBPOENA PRIOR TO RULE 26(f)
CONFERENCE AND INCORPORATED
MEMORANDUM OF LEGAL AUTHORITY (Doc. No.
7)
FILED:

November 9, 2023

THEREON it is ORDERED that the motion is GRANTED.
On October 24, 2023, Plaintiff instituted this copyright infringement action
against Defendant “John Doe subscriber assigned IP address 184.88.205.223.” Doc.

No. 1. On November 9, 2023, Plaintiff filed the above-styled motion seeking leave
of Court to serve a third-party subpoena on an Internet Service Provider, Charter
Communications, Inc./Spectrum (hereinafter “ISP”) pursuant to Federal Rule of
Civil Procedure 26(d). Doc. No. 7. See Fed. R. Civ. P. 26(d) (stating that a party
may not seek discovery from any source before the parties have conferred pursuant
to Fed. R. Civ. P. 26(f) unless allowed under the Federal Rules, by stipulation, or
Court Order). In support, Plaintiff submits the Declaration of David Williamson
(Doc. No. 7-1), the Declaration of Patrick Paige (Doc. No. 7-2), the Declaration of
Susan B. Stalzer (Doc. No. 7-3), and a proposed subpoena (Doc. No. 7-4).
Plaintiff explains that it has discovered that Defendant’s IP address has been
illegally distributing Plaintiff’s motion pictures; the IP address is assigned to
Defendant by his or her ISP, and the ISP is the only party with the information
necessary to determine Defendant’s identity by correlation with the IP address.
Doc. No. 7, at 2, 9–10. So, Plaintiff seeks to serve immediate discovery on the ISP
in order to learn Defendant’s identity, effect service, and otherwise prosecute this
case. Id. at 2.
A court has broad discretion in managing discovery. Klay v. All Defendants,
425 F.3d 977, 982 (11th Cir. 2005). A court may permit a party to conduct discovery
before a Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1). Courts usually require a
showing of good cause for early discovery. See TracFone Wireless, Inc. v. Holden
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Prop. Servs., LLC, 299 F.R.D. 692, 694 (S.D. Fla. 2014); Digital Sin, Inc. v. Does 1-176,
279 F.R.D. 239, 241 (S.D.N.Y. 2012); Dorrah v. United States, 282 F.R.D. 442, 445 (N.D.
Iowa 2012). Here, Plaintiff has established good cause for early discovery—it has
sufficiently alleged infringement and it does not have another way to discover the
putative infringer’s identity to proceed with the litigation.
Still, the Court recognizes that the individual in whose name the internet
access is subscribed at a given IP address may not be the same individual who
engaged in the infringing activity. There is a substantial risk that a non-infringing
party could be identified and served. As one court observed:
By defining doe defendants as ISP subscribers who were assigned
certain IP addresses, instead of the actual internet users who allegedly
engaged in infringing activity, Plaintiff's sought-after discovery has the
potential to draw numerous innocent internet users into the litigation,
placing a burden upon them that weighs against allowing the
discovery as designed.
SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal.
Nov. 30, 2011) (internal quotation and citation omitted). At the same time, the
privacy concerns of non-infringers are not sufficient to deny Plaintiff access to the
discovery sought because, without it, Plaintiff cannot proceed with its case.
Therefore, certain procedural protections are warranted before any identifying
information is made public.
Accordingly, upon due consideration, it is ORDERED that:
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(1) Plaintiff’s Motion for Leave to Serve a Third-Party Subpoena Prior to Rule
26(f) Conference (Doc. No. 7) is GRANTED as set forth in this Order;
(2) Plaintiff may serve the third party with a Rule 45 subpoena commanding
the ISP to provide Plaintiff with the name, physical address, telephone
number, and e-mail address of the subscriber associated with the IP
address at the time of the alleged infringing activity identified in the
Complaint.

Plaintiff may also serve a Rule 45 subpoena on any ISP

identified in response to a subpoena as a provider of internet services to
the subscriber. Plaintiff shall attach a copy of the Complaint (Doc. No.
1) and this Order to any subpoena issued pursuant to this Order;
(3) If the ISP is a “cable operator” under 47 U.S.C. § 522(5), it must comply
with 47 U.S.C. § 551(c)(2), which permits a cable operator to disclose
personal identifying information if the disclosure is “made pursuant to a
court order authorizing such disclosure, if the subscriber is notified of
such order by the person to whom the order is directed,” by sending a
copy of this Order to the subscriber assigned the IP address. The ISP
shall have 21 DAYS from service of the subpoena to notify the subscriber
that identifying information is being sought pursuant to a Rule 45
subpoena.

The ISP shall provide a copy of this Order with the

notification;
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(4) The ISP shall produce the information sought to Plaintiff no later than 21
DAYS after notification to the subscriber;
(5) The subscriber shall have 14 DAYS from the date of notification to move
to quash or otherwise object to Plaintiff’s subpoena;
(6) Plaintiff shall use the information obtained pursuant to the subpoena only
for the purpose of protecting and enforcing Plaintiff's rights as set forth
in the Complaint;
(7) Additionally, Plaintiff shall adhere to the following procedures:
a)

In all written or oral communications with the subscriber, Plaintiff's
attorneys shall identify themselves as representing Plaintiff and not
representing the interests of the subscriber and must inform the
subscriber that any statements made by the subscriber may be used
against the subscriber;

b)

If the subscriber contacts Plaintiff, Plaintiff shall inform the
subscriber of the subscriber’s right to hire legal counsel to represent
the subscriber in this matter;

c)

At any time, the subscriber may inform Plaintiff by telephone or
written communication that the subscriber does not want any
further communication with Plaintiff until Plaintiff names the

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subscriber as the Doe Defendant and serves the subscriber and in
this matter; and
d)

At least 14 DAYS prior to seeking issuance of a summons from the
Clerk that names the subscriber as the Doe Defendant, Plaintiff
must notify the subscriber, or counsel if represented, in writing of
Plaintiff’s intent to name the subscriber as the Doe Defendant and
serve the subscriber in this case.

DONE and ORDERED in Orlando, Florida on November 14, 2023.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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