STRIKE 3 HOLDINGS, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 98.109.30.246

Filing 5

LETTER OPINION AND ORDER granting #4 Motion for Leave to Serve a Third-Party Subpoena, etc. Signed by Magistrate Judge Michael A. Hammer on 6/2/2021. (ams, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Chambers of

Martin Luther King Federal Building
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07101
[phone]

Michael A. Hammer

United States Magistrate Judge

June 2, 2021
To: All counsel of record
LETTER OPINION AND ORDER
RE:

Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address
98.109.30.246
Civil Action No. 21-11423 (ES)(MAH)

Dear Counsel:
This Letter Opinion and Order will address Plaintiff Strike 3 Holdings, LLC’s motion for
leave to serve a third-party subpoena to ascertain the identity of the subscriber assigned Internet
Protocol (“IP”) address 98.109.30.246 for the dates relevant to the Complaint. Plaintiff seeks to
obtain this information before the Federal Rule of Civil Procedure 26(f) scheduling conference in
this matter. Pl.’s Br. in Supp. of Mot., May 24, 2021, D.E. 4-1, at 1. Pursuant to Federal Rule of
Civil Procedure 78, the Court did not hear oral argument. For the reasons stated below, Plaintiff’s
motion [D.E. 4] is granted.
I.

BACKGROUND

Plaintiff Strike 3 Holdings, LLC is a Delaware limited-liability company that claims
ownership of certain United States copyright registrations. Compl., May 18, 2021, D.E. 1, at ¶¶
2, 11, 45, 48. Plaintiff alleges that Defendant illegally distributed Plaintiff’s copyrighted works
via the BitTorrent peer-to-peer file-sharing system, in violation of the Copyright Act, 17 U.S.C. §

101 et seq. 1 Id. at ¶¶ 6, 17-46.
Plaintiff asserts that it does not know Defendant’s identity; it knows only that the infringing
acts alleged in the Complaint were committed using IP address 98.109.30.246. Pl.’s Br. in Supp.
of Mot., May 24, 2021, D.E. 4-1, at 3-4. Therefore, Plaintiff seeks leave to issue a subpoena to
the appropriate Internet Service Provider (“ISP”), in this case, Verizon Fios, so that Plaintiff may
learn Defendant’s true identity. Id. at 4. Plaintiff asserts that the ISP, having assigned the IP
address, can compare the IP address with its records to ascertain Defendant’s identity. Id. at 3, 5.
Plaintiff contends that this information is necessary, relevant, and proportional because, without
it, Plaintiff cannot investigate Doe’s role in the infringement, including to degree to which other
individuals had sufficient access to the IP address. Id. at 4. Releasing the IP address allows
Plaintiff to serve the person associated with the IP address with process; without it, the Plaintiff
cannot protect its copyrights. Id. at 4.
II.

LEGAL STANDARD AND ANALYSIS

Federal Rule of Civil Procedure 26(d)(1) provides that “[a] party may not seek discovery
from any source before the parties have conferred as required by Rule 26(f).” The Court, however,
may grant leave to conduct discovery prior to that conference in the interest of justice. See id. In
ruling on a motion for expedited discovery, the Court should consider “the entirety of the record
to date and the reasonableness of the request in light of all of the surrounding circumstances.”
Better Packages, Inc. v. Zheng, No. 05-4477, 2006 WL 1373055, at *2 (D.N.J. May 17, 2006)
(quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 624 (N.D. Ill.
2000)). Courts faced with motions for leave to serve expedited discovery requests to ascertain the

1

Plaintiff asserts that it has developed, owns, and operates an infringement detection system,
VXN Scan and used VXN Scan, to discover that Defendant used the BitTorrent file network to
illegally download and distribute Plaintiff’s copyrighted motion pictures. Compl, May 18,
2021, D.E. 1, at ¶¶ 27-39. Plaintiff alleges that its investigators were able to use the BitTorrent
network to download one or more pieces of Plaintiff’s copyrighted material during connections
with Defendant’s IP address. See Compl. Mar. 18, 2021, D.E. 1, at ¶¶ 27-28.

identity of John Doe defendants in internet copyright infringement cases often apply the “good
cause” test. See In re BitTorrent Adult Film Copyright Infringement Cases, No. 11-3995, 2012
WL 1570765 (E.D.N.Y. May 1, 2012) (granting limited early discovery regarding a John Doe
defendant); Pacific Century Int’l. Ltd. v. Does 1-101, No. 11-2533, 2011 WL 5117424, at *2 (N.D.
Cal. Oct. 27, 2011) (finding plaintiff had not shown good cause to obtain expedited discovery).
Under the good cause test, Courts consider the totality of the circumstance and balance the interests
of the plaintiff against the interests of the defendant. See, e.g., Strike 3 Holdings, LLC v. Doe,
No. 1:18-CV-12585-NLH-JS, 2020 WL 3567282, at *4 (D.N.J. June 30, 2020); Better Packages,
2006 WL 1373055, at *3. Good cause exists where “the need for expedited discovery, in
consideration of the administration of justice, outweighs the prejudice to the responding party.”
See Malibu Media, LLC v. John Doe, No. 16-cv-942 (KM/MAH), 2016 WL 952340, *1 (D.N.J.
Mar. 14, 2016) (citation omitted); Better Packages, 2006 WL 1373055, at *3.
Courts in this District have frequently applied the “good cause” standard to permit early
but limited discovery under analogous circumstances. See Manny Film LLC v. Doe Subscriber
Assigned IP Address 50.166.88.98, 98 F. Supp. 3d 693 (D.N.J. 2015) (granting Plaintiff’s motion
to seek leave to conduct expedited discovery). In Malibu Media, LLC v. John Does 1-11, plaintiff
sought leave to serve a subpoena demanding that the ISP in question reveal the John Doe
defendants’ name, address, telephone number, email address, and Media Access Control (“MAC”)
address. No. 12-7615, 2013 U.S. Dist. LEXIS 26217, at *3-4 (D.N.J. Feb. 26, 2013). The Court
granted the plaintiff’s request for early discovery, but permitted the plaintiff to obtain the only the
information that is absolutely necessary to allow it to continue prosecuting its claims: the
defendant’s name and address. Id. at *3. The Court recognized that neither party should be left
without remedy. On the one hand, plaintiffs claimed to be the owners of copyrighted works that
were entitled to protection. On the other hand, more expansive and intrusive discovery could have
imposed an undue burden on innocent individuals who might not have been the actual infringers.

Id. at *9-11 (citing Third Degree Films, Inc. v. John Does 1-110, Civ. No. 12-5817, 2013 U.S.
Dist. LEXIS 27273 (D.N.J. Jan. 17, 2013)). Therefore, the Court granted plaintiffs limited, early
discovery, i.e., the names and addresses of the subscribers but not the email addresses, phone
numbers, or MAC addresses. Id. at *3. Other courts in this District have reached the same
conclusion and have imposed similar limitations. See, e.g., Malibu Media LLC v. Doe, No. 143874 (WJM) (MF), Order (D.E. 7), at 4 (D.N.J. Sept. 2, 2014) (limiting subpoena to be issued
before Rule 26 conference to “the name and address of Defendant”); Malibu Media, LLC v. Doe,
No. 13-4660 (JAP) (DEA), slip op. (D.E. 5) at 2 (D.N.J. Aug. 19, 2013) (limiting the scope of a
pre-Rule 26(f) conference subpoena to a subscriber’s name and address); Voltage Pictures v. Doe,
No. 12-6885 (RMB) (JS), 2013 U.S. Dist. LEXIS 155356, at *9-10 (D.N.J. May 31, 2013)
(granting leave to serve subpoena requesting only the name, address, and media access control
address associated with a particular IP address); Malibu Media, LLC v. John Does 1-18, No. 127643 (NLH) (AMD), 2013 U.S. Dist. LEXIS 155911, at *9-10 (D.N.J. Mar. 22, 2013) (restricting
the scope of a pre-Rule 26(f) conference subpoena by not permitting discovery of the internet
subscriber’s telephone number or e-mail address).
Here, there is good cause to permit limited discovery prior to the Rule 26(f) conference.
Limited discovery is necessary to allow Plaintiff to identify the appropriate defendant, and to
effectuate service of the Amended Complaint. The Court certainly recognizes that the IP account
holder might not be personally responsible for the alleged infringement. However, the IP account
holder might possess information that assists in identifying the alleged infringer, and thus that
information is discoverable under the broad scope of Rule 26. See Malibu Media, LLC v. Does,
No. 12-07789 (KM) (MCA), 2013 U.S. Dist. LEXIS 183958, at *24 (D.N.J. Dec. 18, 2013) (“The
Court notes that it is possible that the Internet subscriber did not download the infringing material.
It is also possible, however, that the subscriber either knows, or has additional information which
could lead to the identification of the alleged infringer. Accordingly, the Court finds that the

information sought by the subpoena is relevant.”); see also Malibu Media LLC v. Doe, No. 143874 (WJM) (MF), Order (D.E. 7), at 3 (D.N.J. Sept. 2, 2014) (quoting Malibu Media, LLC v.
Does, No. 12-07789 (KM) (MCA), 2013 U.S. Dist. LEXIS 183958, at *24 (D.N.J. Dec. 18, 2013)).
Accordingly, the Court determines that good cause exists to allow Plaintiff to discover the
name and address of the IP subscriber. That information serves the purposes outlined above, while
also taking into consideration the impact that disclosure might have on a subscriber who is not
personally responsible for the alleged infringement. Therefore, the Court grants Plaintiff’s motion.
D.E. 4. Plaintiff may serve Doe’s ISP, Verizon Fios, with a subpoena pursuant to Federal Rule of
Civil Procedure 45 that is limited to obtaining the name and address of the subscriber of IP address
98.109.30.246. Plaintiff may not seek the subscriber’s telephone number(s), email address(es), or
MAC addresses. Plaintiff shall attach a copy of this Letter Opinion and Order to the subpoena.
Plaintiff shall limit its use of the information to this litigation, and Plaintiff shall be prepared to
provide copies of the responsive information to any Defendant who enters an appearance in this
case. 2
So Ordered.

s/ Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE

2

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 the basis for its claims or its identification of the specific individual as the Defendant.