STRIKE 3 HOLDINGS, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 73.196.168.172

Filing 8

AMENDED ORDER plaintiffs Motion for Leave to Serve a Third Party Subpoena Prior o a Rule 26(f) Conference [Doc. No. 4] is GRANTED; ORDERED that plaintiffs Motion for an Extension of Time Within Which to Effectuate Service of Process in this Matter [Doc. No. 5] is GRANTED. Plaintiff shall effectuate service by August 7,2018. Signed by Magistrate Judge Joel Schneider on 4/24/18. (dd, )

[Doc. No. 4, 5]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
STRIKE 3 HOLDINGS, LLC,

:
:
Plaintiff,
:
:
v.
:
:
JOHN DOE SUBSCRIBER ASSIGNED :
IP ADDRESS 73.196.168.172,
:
:
Defendant.
:
______________________________:

Civil No. 17-10285 (JBS/JS)

AMENDED ORDER
This matter is before the Court on the “Motion for Leave to
Serve a Third Party Subpoena Prior to a Rule 26(f) Conference”
(“Motion”) [Doc. No. 4] filed by plaintiff, Strike 3 Holdings, LLC
(“Strike 3”).1 Plaintiff’s motion alleges the John Doe defendant
assigned to IP address 73.196.168.172 infringed its copyrighted
works. Plaintiff’s only identifying information for defendant is
the IP address. Accordingly, plaintiff seeks limited discovery in
advance of the Fed. R. Civ. P. 26(f) conference so that plaintiff
may obtain defendant’s name and address from his or her internet
service

provider

(“ISP”),

Comcast

Cable

Communications,

LLC

This Order also addresses plaintiff’s “Motion for an Extension
of Time Within Which to Effectuate Service of Process in this
Matter” [Doc. No. 5]. For good cause shown, the motion [Doc. No.
5] is GRANTED and plaintiff shall effectuate service by August 7,
2018.
1

1

(“Comcast”).

The

Court

exercises

its

discretion

to

decide

plaintiff’s motion without oral argument. See Fed. R. Civ. P. 78;
L. Civ. R. 78.1. For the reasons to be discussed, plaintiff’s
motion is GRANTED.
Background
Plaintiff holds the copyright to a multitude of adult films.
See Declaration of Greg Lansky, Ex. A [Doc. No. 4-2]; Compl. at ¶
2

[Doc.

No.

1].

Plaintiff

alleges

defendant

used

a

file

distribution network known as BitTorrent to copy and distribute
plaintiff’s copyrighted films to others. See Compl. at ¶¶ 23;
Declaration of Tobias Fieser,

Ex.

B [Doc. No. 4-3] (“Fieser

Decl.”).
Plaintiff discovered defendant’s infringement through reports
from its third-party investigator, IPP International UG (“IPP”).
See Compl. at ¶ 24. IPP, through its employee Tobias Fieser,
initially identified defendant while monitoring the BitTorrent
file

distribution

network

for

the

presence

of

potentially

infringing transactions. Fieser Decl. at ¶¶ 5, 7. IPP’s forensic
servers

connected

defendant’s

IP

to

address.

an
Id.

electronic
at

¶

7.

device
After

registered
the

to

connection,

defendant’s IP address was documented distributing multiple Strike
3 copyrighted movies. Id. Thereafter, plaintiff filed suit against
defendant alleging direct infringement of its copyrighted works.
See Compl. at ¶¶ 30-32.
2

In order to identify the actual defendant, plaintiff seeks
leave to file a Fed. R. Civ. P. 45 subpoena on defendant’s ISP,
Comcast. Mot. at 2 [Doc. No. 4]. The subpoena would direct Comcast
to divulge the “true name and address” of defendant. Id.
Discussion
Generally, “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense.” Fed. R. Civ. P. 26(b). However, despite the broad scope
of discovery, parties are generally barred from seeking discovery
before the parties participate in a conference in conformance with
Rule 26(f). Fed. R. Civ. P. 26(d)(1). Nonetheless, in certain
circumstances

a court

“may

grant [a

party] leave

to conduct

discovery prior to” the Rule 26(f) conference. Malibu Media, LLC
v. John Doe subscriber assigned IP address 47.20.202.138, C.A. No.
16-942 (KM/MAH), 2016 WL 952340, at *1 (D.N.J. Mar. 14, 2016)
(citing Better Packages, Inc. v. Zheng, No. 05-4477 (SRC), 2006 WL
1373055, at *2 (D.N.J. May 17, 2006)).
To determine if expedited discovery is appropriate a court
should apply a “good cause” test. Malibu Media, LLC v. Doe, C.A.
No. 15-8940 (MCA/MAH), 2016 WL 614414, at *2 (D.N.J. Feb. 16,
2016); Century Media, Ltd. v. John Does 1-77, C.A. No. 12-3911
(DMC/JAD), 2013 WL 868230, at *2 (D.N.J. Feb. 27, 2013). “Good
cause

exists

where

the

need

for

expedited

discovery,

in

consideration of the administration of justice, outweighs the
3

prejudice to the responding party.” Malibu Media, 2016 WL 614414,
at

*1

(internal

citations

omitted).

Further,

a

court

should

consider (1) the timing of the request in light of the formal start
to discovery; (2) whether the request is narrowly tailored; (3)
the purpose of the requested discovery; (4) whether discovery
burdens the defendant; and (5) whether defendant can respond to
the request in an expedited manner. Better Packages, 2006 WL
1373055, at *3.
Plaintiff contends there is good cause for this Court to grant
the motion because: 1) it makes a prima facie claim for direct
copyright infringement, 2) it is seeking limited and specific
information that is necessary to serve defendant, 3) there are no
alternative means to discover defendant’s true identity, 4) the
subpoenaed information is necessary to advance the infringement
claim, and 5) defendant’s minimal privacy interest is outweighed
by plaintiff’s interest in protecting its copyrights. Mot. at 612.
The Court finds plaintiff has demonstrated good cause to serve
a Rule 45 subpoena on Comcast before a Rule 26(f) conference. This
ruling is consistent with other holdings in similar cases. See,
e.g.,

Manny

Film

LLC

v.

Doe

Subscriber

Assigned

IP

Address

50.166.88.98, 98 F. Supp.3d 693, 696 (D.N.J. 2015) (finding good
cause to allow the plaintiff to discover the name and address of
an IP subscriber); Malibu Media, 2016 WL 614414, at *2 (same);
4

Good Man Prods., Inc. v. Doe, C.A. No. 14-7906 (ES/MAH), 2015 WL
892941, at *3 (D.N.J. Mar. 2, 2015) (same).
However, Courts impose safeguards to protect the privacy
rights of potentially innocent third parties. See Century Media,
Ltd., 2013 WL 868230, at *3-4 (limiting the subpoena to the name
and address of the account holder); Manny Film, 98 F. Supp.3d at
696 (limiting the subpoena to the name and address of the account
holder and requiring the ISP to provide notice to the subscriber
in order to provide the subscriber an opportunity to challenge the
subpoena before the ISP releases the information requested). The
Court adopts the reasoning of these cases, and thus, will limit
plaintiff’s discovery request to ensure an innocent party is not
unduly burdened.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED this 24th day of April, 2018 that
plaintiff’s “Motion for Leave to Serve a Third Party Subpoena Prior
to a Rule 26(f) Conference” [Doc. No. 4] is GRANTED; and it is
further
ORDERED that plaintiff’s “Motion for an Extension of Time
Within Which to Effectuate Service of Process in this Matter” [Doc.
No. 5] is GRANTED. Plaintiff shall effectuate service by August 7,
2018; and it is further
ORDERED that plaintiff may serve a

Rule 45

subpoena on

Comcast, defendant’s ISP, which assigned the IP address associated
5

with defendant—73.196.168.172. In the subpoena plaintiff may only
request information regarding the name and address associated with
the IP address. This Order shall be attached to the subpoena; and
it is further
ORDERED that upon receipt of plaintiff’s subpoena the ISP
shall have thirty (30) days to provide the IP subscriber with a
copy of this Order and plaintiff’s subpoena. Upon receipt of the
subpoena and this Order the IP subscriber has thirty (30) days in
which to file a motion to quash, move for a protective order or
seek other applicable relief. If the IP subscriber chooses to
contest the subpoena he/she must notify the ISP of his/her intent
so the ISP is on notice not to release personal information to
plaintiff until the issue is resolved by the Court; and it is
further
ORDERED that if the IP subscriber

does not contest the

subpoena within thirty (30) days of receipt of the subpoena and
this Order, the ISP shall provide plaintiff with the requested
information within twenty-one (21) days. Any information plaintiff
receives

from

the

ISP

may

only

be

used

for

the

purpose

protecting its rights as set forth in the complaint.

s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

6

of