Strike 3 Holdings, LLC v. John Doe

Filing 6

ORDER granting Plaintiff's 4 Motion for Leave to Serve Third-Party Subpoena Before Rule 26(f) Conference.. Signed by Magistrate Judge Elizabeth A. Stafford. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STRIKE 3 HOLDINGS, LLC,

v.

Case No. 24-cv-12933
Plaintiff, Honorable Nancy G. Edmunds
Magistrate Judge Elizabeth A. Stafford

JOHN DOE SUBSCRIBER
ASSIGNED IP ADDRESS
99.6.127.91,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
SERVE THIRD-PARTY SUBPOENA BEFORE RULE 26(f)
CONFERENCE (ECF NO. 4)

Plaintiff Strike 3 Holdings, LLC, brings this copyright infringement suit
against John Doe, an internet subscriber identified only by IP address
99.6.127.91. ECF No. 1. Strike 3 discovered that this IP address was
used to copy and distribute several of its motion pictures in violation of 17
U.S.C. § 106. Id. Strike 3 moves for leave to serve a third-party subpoena
on AT&T, Inc., Doe’s internet service provider (ISP), to identify Doe through
this IP address. ECF No. 4.
Parties generally “may not seek discovery from any source before
conferring as required by Rule 26(f)” unless authorized by the rules,

stipulation, or court order. Fed. R. Civ. P. 26(d)(1) (cleaned up). But “it is
not uncommon for discovery, such as the subpoena requested here, to be
authorized prior to the 26(f) conference in copyright infringement cases.”
Strike 3 Holdings, LLC v. Doe, No. 22-10419, 2022 WL 1205008, at *1
(E.D. Mich. Apr. 22, 2022) (cleaned up). In those cases, courts have
applied a good cause standard for early discovery. Third Degree Films,
Inc. v. Does 1-72, No. 12-cv-14106, 2012 WL 12931709, at *1 (E.D. Mich.
Nov. 13, 2012) (citing Arista Records, LLC v. Doe, 604 F.3d 110, 119 (2d
Cir. 2010)). Good cause exists when: “(1) the plaintiff makes a prima facie
showing of a copyright infringement claim; (2) the plaintiff submits a specific
discovery request; (3) the information sought is limited in scope and not
available through alternative means; and (4) there is a minimal expectation
of privacy on the part of the defendant.” Id.
The Court finds that Strike 3 has established good cause for its
request to serve a subpoena before a Rule 26(f) conference. Thus, Strike
3’s motion for leave to serve a subpoena on the ISP is GRANTED subject
to the following conditions:
• Strike 3 may serve the ISP with a Rule 45 subpoena commanding the
ISP to provide Strike 3 with only the true name and address of the

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John Doe defendant to whom the ISP assigned IP address
99.6.127.91.
• Strike 3 shall attach to any such subpoena a copy of this order.
• Strike 3 may also serve a Rule 45 subpoena in the same manner as
above on any service provider that is identified in response to a
subpoena as a provider of internet services to the John Doe
defendant.
• Within seven days of service of the subpoena, the ISP shall
reasonably attempt to identify John Doe and provide him or her with a
copy of the subpoena and this order. If the ISP is unable to
determine, to a reasonable degree of technical certainty, the identity
of the user of the IP address, it shall notify the Court and Strike 3’s
counsel.
• The ISP shall have 21 days from the service of the subpoena to move
to quash or otherwise object to the subpoena. The John Doe
defendant shall have 14 days from receipt of the subpoena from the
ISP to move to quash or otherwise object to the subpoena. The ISP
shall preserve any subpoenaed information pending the resolution of
any timely filed motion to quash. See Third Degree Films v. Does 147, 286 F.R.D. 188, 192 (D. Mass. 2012) (issuing a subpoena with
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provision for motion practice before production of information).
Where no motion is filed by either the ISP or the John Doe defendant
within the time periods prescribed herein, the ISP shall produce to
Strike 3 the information identified in Paragraph 1, above.
• John Doe defendant must preserve all evidence that might impact the
subject matter of this litigation. He or she shall not destroy, conceal,
or delete any evidence, documents, files, electronic data, or other
tangible items pertaining to this litigation, including, but not limited to,
any computer devices, hard drives, external drives, or electronically
stored information.
• Strike 3 may only use the information disclosed in response to a Rule
45 subpoena served on the ISP for the purpose of protecting and
enforcing Strike 3’s rights as set forth in its complaint.
s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
Dated: November 26, 2024

NOTICE TO PARTIES ABOUT OBJECTIONS
Within 14 days of being served with this order, any party may file
objections with the assigned district judge. Fed. R. Civ. P. 72(a). The
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district judge may sustain an objection only if the order is clearly erroneous
or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a
magistrate judge’s ruling on a non-dispositive motion, the ruling
remains in full force and effect unless and until it is stayed by the
magistrate judge or a district judge.” E.D. Mich. LR 72.2.
CERTIFICATE OF SERVICE
The undersigned certifies that this document was served on counsel
of record and any unrepresented parties via the Court’s ECF System to
their email or First Class U.S. mail addresses disclosed on the Notice of
Electronic Filing on November 26, 2024.
s/Julie Owens
JULIE OWENS
Case Manager

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