STRIKE 3 HOLDINGS, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 73.33.187.178
Filing
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OPINION AND ORDER Granting 5 Motion Seeking Leave To Serve A Third Party Subpoena Prior To Rule 26(f) Discovery Conference; Plaintiff may serve a subpoena issued to Comcast Cable that is limited to requesting the name and address only associated with the IP address identified in the complaint Signed by Magistrate Judge Matthew J. Skahill on 10/25/2024. (sms2)
[ECF No. 5]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v.
Civil No. 24-09414 (RMB/MJS)
JOHN DOE SUBSCRIBER ASSIGNED
IP ADDRESS 73.33.187.178,
Defendant.
OPINION
This
matter
is
before
AND
the
ORDER
Court
on
Plaintiff
Strike
3
Holdings, LLC’s (“Plaintiff”) motion for leave to serve a thirdparty subpoena prior to the Rule 26(f) scheduling conference. The
Court
has
considered
Plaintiff’s
submission
and,
pursuant
to
Federal Rule of Civil Procedure 78, has decided this motion without
oral argument. For the reasons set forth herein, Plaintiff’s motion
is GRANTED.
Plaintiff, a limited liability company that claims ownership
of certain United States copyright registrations, alleges that
John Doe Defendant (“Defendant”) illegally distributed Plaintiff’s
copyrighted works using the BitTorrent peer-to-peer filing sharing
system, in violation of the Copyright Act, 17 U.S.C § 101 et seq.
See generally Compl. [ECF No. 1]. Plaintiff asserts that it does
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not
know
the
Defendant’s
identity;
it
knows
only
that
the
infringing acts alleged in the Complaint were committed using
Internet Protocol (“IP”) address 73.33.187.178. Pl.’s Br. at 1
[ECF No. 5-1]. Accordingly, Plaintiff seeks leave to issue a
subpoena, pursuant to Fed. R. Civ. P. 45, to the appropriate
Internet Service Provider (“ISP”), Comcast Cable, to ascertain the
name and address of the subscriber.
Id.
Plaintiff argues that good cause exists to grant the requested
discovery and that without it, Plaintiff will have no means to
undercover Defendant’s identity, to serve Defendant, and protect
its copyrights. Id. at 2. Because Defendant has not yet been
served, the motion is unopposed.
Generally,
“[p]arties
may
obtain
discovery
regarding
any
nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case.” 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). See
FED. R. CIV. P. 26(d)(1). Nonetheless, in certain circumstances, a
court may “grant [a party] leave to conduct discovery prior to
that conference[,]” considering “the entirety of the record to
date and the reasonableness of the request in light of all the
circumstances.” Strike 3 Holdings, LLC v. Doe, Civ. No. 21-17863,
2021 WL 4623348, at *1 (D.N.J. Oct. 7, 2021) (citing Better
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Packages, Inc. v. Zheng, Civ. No. 05-4477, 2006 WL 1373055, at *2
(D.N.J. May 17, 2006)).
To determine if expedited discovery is appropriate, a court
should apply the “good cause” test. Strike 3 Holdings v. Doe, Civ.
No. 18-2674, 2020 WL 3567282 (D.N.J. June 30, 2020). “Good cause
exists where ‘the need for expedited discovery, in consideration
of the administration of justice, outweighs the prejudice to the
responding party.’” Id. at *4 (citation 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. See Better Packages,
2006 WL 1373055, at *3.
Plaintiff contends there is good cause for this Court to grant
its motion because: (1) it makes a prima facie claim for direct
copyright infringement, (2) the timing of its request in light of
the formal start of discovery favors granting the relief; (3) it
has narrowly tailored and identified the limited and specific
information sought; (4) the purpose of the requested discovery and
the need for the information sought in order to advance the claim
favors granting relief; (5) the discovery does not burden Defendant
or require Defendant to respond in an expedited manner; (6) there
are no alternative means to obtain Defendant’s true identity; and
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(7) Defendant’s privacy interest is outweighed by Plaintiff’s
interest in protecting its copyrights. ECF No. 5-1 at 8-23.
Having considered Plaintiff’s application, the Court finds
Plaintiff has demonstrated good cause to serve a Rule 45 subpoena
on Comcast Cable prior to a Rule 26(f) conference. The information
being sought is necessary to allow Plaintiff to identify the
appropriate defendant and serve the Amended Complaint. See e.g.,
Strike 3 Holdings, LLC, 2021 WL 4623348, at *2; Strike 3 Holdings,
LLC v. Doe, Civ. No. 22-4430, 2022 WL 2952916, at *2 (July 26,
2022); Strike 3 Holdings, LLC v. Doe, Civ. No. 21-13910, 2021 WL
3930719, *2 (Sept. 1, 2021). The Court further recognizes that the
IP account holder might not be personally responsible for the
alleged infringement, but the IP account holder might possess
information that assists in identifying the alleged infringer, and
thus the information is discoverable under the broad scope of Rule
26. See e.g., Strike 3 Holdings, LLC, 2021 WL 4623348, at *2;
Strike 3 Holdings, LLC, 2022 WL 2952916, at *2; Strike 3 Holdings,
LLC, 2021 WL 3930719, *2.
However, with this in mind and considering the undue burden
that more expansive and intrusive discovery could have on innocent
individuals, who may not have been the actual infringers, the Court
limits this early discovery only to the name and address of the
subscriber. See e.g., Strike 3 Holdings, LLC, 2021 WL 4623348, at
*2; Strike 3 Holdings, LLC, 2022 WL 2952916, at *2; Strike 3
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Holdings, LLC v. Doe, Civ. No. 21-12769, 2021 WL 5173411, at *3
(D.N.J. Oct. 29, 2021); Strike 3 Holdings, LLC, 2021 WL 3930719,
at *2; Strike 3 Holdings, LLC, 2020 WL 3567282, at *9.
Accordingly, IT IS on this 25th day of October 2024 hereby:
ORDERED that Plaintiff’s Motion [ECF No. 5] seeking leave to
serve a subpoena pursuant to Rule 45 prior to the Rule 26(f)
conference is hereby GRANTED; and it is further
ORDERED that Plaintiff may serve a subpoena issued to Comcast
Cable that is limited to requesting the name and address only
associated with the IP address identified in the complaint, limited
in scope to the time periods of the alleged infringing activity
outlined in the complaint and exhibits thereto. Plaintiff shall
attach to any such subpoena a copy of this Order. Under no
circumstances
is
Plaintiff
permitted
to
seek
or
obtain
the
telephone number(s), email address(es), or any other information
associated with this individual through this subpoena; and it is
further
ORDERED that Plaintiff may only use the information disclosed
in response to a Rule 45 subpoena served on the ISP for the purpose
of protecting and enforcing Plaintiff’s rights as set forth in its
Complaint; and it is further
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ORDERED that Plaintiff shall be prepared to provide copies of
the
responsive
information
to
any
Defendant
who
enters
an
appearance in this case. 1
s/ Matthew J. Skahill
MATTHEW J. SKAHILL
United States Magistrate Judge
At:
Camden, New Jersey
Before filing an Amended Complaint naming a specific individual
as a Defendant, Plaintiff shall ensure that it has an adequate
factual basis to do so. By permitting this discovery, the Court
does not find or suggest that Plaintiff may rely solely on the
subscriber’s affiliation with the IP address in question as a basis
for its claims or its identification of the specific individual as
the Defendant.
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