Strike 3 Holdings, LLC v. Doe

Filing 7

ORDER granting DE 5 Motion for Discovery. Plaintiff's motion for expedited discovery under Fed. R. Civ. P. 26(d)(1) is granted, subject to the specific limitations and instructions set forth in the attached written order. Ordered by Magistrate Judge Steven I. Locke on 4/9/2018. (Vissichelli, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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IN RE STRIKE 3 HOLDINGS, LLC
ADULT FILM COPYRIGHT
INFRINGEMENT CASES

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ORDER
17-cv-5606 (SJF)(SIL)
17-cv-5630 (JS)(SIL)
17-cv-5631 (ADS)(SIL)
17-cv-5633 (DRH)(SIL)
17-cv-5634 (ADS)(SIL)
17-cv-5635 (ADS)(SIL)
17-cv-5637 (ADS)(SIL)
17-cv-5638 (DRH)(SIL)
17-cv-6713 (SJF)(SIL)
17-cv-6714 (ARR)(SIL)
17-cv-6719 (SJF)(SIL)
18-cv-0689 (JS)(SIL)
18-cv-0691 (JFB)(SIL)
18-cv-0692 (SJF)(SIL)
18-cv-0693 (ADS)(SIL)
18-cv-0694 (SJF)(SIL)
18-cv-0695 (ADS)(SIL)
18-cv-0696 (ADS)(SIL)
18-cv-0697 (SJF)(SIL)
18-cv-0698 (JS)(SIL)

STEVEN I. LOCKE, United States Magistrate Judge:
These copyright infringement actions were commenced by Plaintiff Strike 3
Holdings, LLC (“Plaintiff” or “Strike 3”) against various unnamed defendants (the
“Doe Defendant(s)”), who have as yet only been identified by the Internet Protocol
(“IP”) addresses allegedly associated with them. Presently before the Court in each
such case is a motion for expedited discovery under Federal Rule of Civil Procedure
26(d)(1), seeking permission to serve subpoenas upon various Internet Service
Providers (“ISPs”) to obtain the true identity of each Doe Defendant. For the reasons

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set forth herein, the motions, which are materially indistinguishable, are granted,
subject to a protective order as set forth more fully below.
I.

Background
The following facts are drawn from the Complaint and declarations filed in the

action styled Strike 3 Holdings, LLC v. John Doe, bearing case number 17-cv5606 (SJF)(SIL). The allegations in that case are virtually identical to those asserted
in each of the actions identified in the caption above. 1 Thus, the Court uses this
common set of facts in reaching its decision on all 20 pending motions, and, despite
providing internal references only to the docket relating to case number 17-cv5606 (SJF)(SIL), the Court refers to the Doe Defendants and the ISPs implicated in
all 20 motions collectively throughout this Order.
Strike 3 owns the copyrights to adult movies distributed under the “Blacked,”
“Tushy,” and “Vixen” brands both online and on DVD. 2 See Complaint for Copyright
Infringement (the “Complaint” or “Compl.”), Docket Entry (“DE”) [1], ¶ 3; Declaration
of Greg Lansky in Support of Plaintiff’s Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference (“Lansky Decl.”), DE [5-2], ¶ 3. Plaintiff
operates subscription-based websites with some of the highest paid subscriber bases

The Complaints in each of the above-captioned actions also contain allegations that are
markedly similar to those asserted by Malibu Media, LLC (“Malibu Media”) in a number of matters
that were previously, or are currently, pending in this District (collectively, the “Malibu Media
Matters”). E.g., Malibu Media, LLC v. John Doe, No. 15-cv-3504 (JFB)(SIL) (closed); Malibu Media,
LLC v. John Doe, No. 17-cv-6890 (SJF)(SIL) (pending). In such cases, Malibu Media filed, and this
Court granted, motions for expedited discovery analogous to those submitted in these matters
commenced by Strike 3. E.g., Malibu Media, LLC v. John Doe, No. 17-cv-6890 (SJF)(SIL), DEs [7],
[10].
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Strike 3 alleges that the copyrights at issue are registered with the United States Copyright
Office. See Compl. ¶ 30.
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of any adult site in the world and also licenses its movies to popular broadcasters.
See Compl. ¶ 13. Strike 3’s websites have approximately 20 million unique visitors
per month and its DVDs are the number-one selling products of their type in the
United States. See id.; Lansky Decl. ¶ 10.
According to Plaintiff, its movies are among the most pirated adult content in
the world. See Compl. ¶ 16. Strike 3 alleges that the Doe Defendants and many other
individuals or entities use “BitTorrent” to illegally download and distribute its
copyrighted movies.

See id. ¶ 23.

BitTorrent is “a system designed to quickly

distribute large files over the Internet” by allowing its users to “connect to the
computers of other . . . users in order to simultaneously download and upload pieces
of the file[s] from and to” each other. Id. ¶ 17. To use BitTorrent to download a movie,
a user must obtain a “torrent file,” which contains instructions for both identifying
the IP addresses of other users who have the movie and downloading the movie from
such users. See id. ¶ 18. Each piece of a BitTorrent file is assigned a “cryptographic
hash value” that acts as the file’s unique digital fingerprint. See id. ¶¶ 20, 21. The
complete digital media file likewise has a unique cryptographic hash value. See id. ¶
22.
After discovering that its content was being distributed and downloaded via
BitTorrent, Plaintiff hired IPP International UG (“IPP”)—a German company that
provides forensic investigation services to copyright owners—to monitor and record
online infringement of its movies. See Declaration of Tobias Fieser in Support of
Plaintiff’s Motion for Leave to Take Discovery Prior to a Rule 26(f) Conference

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(“Fieser Decl.”), DE [5-3], ¶¶ 3, 4. Using its forensic software, IPP can identify IP
addresses that are being used by infringers to distribute copyrighted works within
the BitTorrent file distribution network.

Id. ¶ 5.

During the course of its

investigation in connection with the subject cases, IPP established a direct connection
with each Doe Defendant’s IP address while he or she was using the BitTorrent
network. See Compl. ¶ 24; Fieser Decl. ¶ 7. IPP then analyzed the BitTorrent pieces
being distributed by each Doe Defendant—as well as full copies of the digital files
being transferred—and determined, by reference to the files’ cryptographic hash
values, that each Doe Defendant had distributed full digital movie files containing
content that is identical or substantially similar to Strike 3’s copyrighted movies. See
Compl. ¶¶ 25-29; Fieser Decl. ¶¶ 7-11.
Plaintiff also hired SecondWave Information Systems (“SecondWave”), a
technology consulting firm specializing in information systems and technology
integration, to individually analyze and retain forensic evidence obtained by IPP. See
Declaration of Jeff Fischbach in Support of Plaintiff’s Motion for Leave to Take
Discovery Prior to a Rule 26(f) Conference, DE [5-4], ¶¶ 3, 8. Using a program called
“Wireshark,” SecondWave’s president, Jeff Fishbach (“Fishbach”), confirmed certain
of IPP’s findings pertaining to the alleged infringements and ascertained the ISP
associated with each Doe Defendant’s IP address. See id. ¶¶ 3, 10, 11. According to
Fishbach, “a subpoena to an ISP is consistently used by civil plaintiffs and law
enforcement to identify a subscriber of an IP address.” Id. ¶ 12.

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By the instant motions, Strike 3 seeks to uncover the true identities of the Doe
Defendants by tracing the IP addresses implicated in the alleged infringement (i.e.,
the BitTorrent downloading) to the particular individual(s) or entitie(s) to which the
IP addresses are registered. To that end, Plaintiff seeks permission to serve Rule 45
subpoenas on various ISPs—those allegedly responsible for providing internet access
to the Doe Defendants and maintaining identifying subscriber information regarding
the Doe Defendants—which command them to disclose to Strike 3 each Doe
Defendant’s true name and address.
II.

Legal Standard—Good Cause
“Though parties generally may not initiate discovery prior to satisfying the

meet and confer requirement of Fed. R. Civ. P. 26(f), courts may in some instances
order earlier discovery.” Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y.
2012) (citing Fed. R. Civ. P. 26(d)).

Courts in this District and in the Southern

District of New York generally require a showing of “good cause” in order to permit
expedited discovery prior to a Rule 26(f) conference. See In re BitTorrent Adult Film
Copyright Infringement Cases, 296 F.R.D. 80, 86-87 (E.D.N.Y. 2012) (citing Ayyash v.
Bank Al—Madina, 233 F.R.D. 325, 326 (S.D.N.Y. 2005)); see also Malibu Media, LLC
v. Doe, No. 15-CV-1883, 2015 WL 1780965, at *2 (S.D.N.Y. Apr. 10, 2015) (applying
“the flexible standard of reasonableness and good cause,” adopted in Ayyash, supra).
“[I]n deciding a matter merely of regulating the timing of discovery, ‘it makes sense
to examine the discovery request . . . on the entirety of the record to date and the
reasonableness of the request in light of all the surrounding circumstances.’” Ayyash,

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233 F.R.D. at 327 (emphasis in original) (quoting Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. O’Connor, 194 F.R.D. 618, 624 (N.D. Ill. 2000)).
III.

Analysis
On September 28, 2015, a Doe Defendant in the action styled Malibu Media,

LLC v. John Doe, No. 15-cv-3504 (JFB)(SIL) filed a motion to quash a subpoena
Malibu Media served on that Doe Defendant’s ISP that is analogous to the subpoenas
Strike 3 currently seeks leave to serve in these cases. Compare Doe Defendant’s
Motion to Quash Subpoena, Malibu Media, LLC v. John Doe, No. 15-cv-3504
(JFB)(SIL), DE [10], with MOTION for Leave to File Miscellaneous Relief prior to
Rule 26(f) Conference, Strike 3 Holdings, LLC v. John Doe, No. 17-cv5606 (SJF)(SIL), DE [5]. In that case, this Court concluded that good cause existed
to allow for the expedited discovery provided for in the July 29, 2015 Discovery Order
in that matter. See Malibu Media, LLC v. John Doe, No. 15-cv-3504 (JFB)(SIL),
Discovery Order, DE [9]; id., Memorandum and Order (the “August 23, 2016
Memorandum and Order”), DE [36]. Here, because the factual circumstances, legal
issues, and materials submitted in support of Strike 3’s motions are substantially
similar to those in the Malibu Media Matters, the Court incorporates the reasons set
forth in the August 23, 2016 Memorandum and Order into this Order, and concludes
that good cause exists to allow for the expedited discovery sought by Strike 3.
Accordingly:
IT IS ORDERED that Strike 3 may immediately serve a subpoena in
compliance with Fed. R. Civ. P. 45 (the “Subpoena(s)”) on the ISP specifically
identified in the Complaint in each above-captioned matter, to obtain only the name
and address of the internet subscriber(s) associated with the IP address also
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identified therein. Under no circumstances is Strike 3 permitted to seek or obtain
any Doe Defendant’s phone number or email address, or to seek or obtain information
about potential defendants other than those whose IP address is specifically
identified in each Complaint, without a further Court order. Each such Subpoena
shall have a copy of this Order attached; and
IT IS FURTHER ORDERED that, upon receiving a Subpoena, the ISP shall
use reasonable efforts to identify the internet subscriber(s) associated with the
referenced IP address, but shall not immediately disclose such information to Strike
3. Rather, within 60 days of receiving a Subpoena, the ISP shall serve a copy thereof,
together with a copy of this Order, upon the subscriber(s) it determines to be
associated with the implicated IP address. This measure is appropriate to place the
subscriber(s) on fair notice of Strike 3’s efforts to obtain his or her identifying
information, and his or her right to contest the Subpoena or litigate it anonymously.
In this regard, service by the ISPs upon any of the Doe Defendants may be made
using any reasonable means, including written notice sent to his or her last known
address, transmitted either by first-class or overnight mail; and
IT IS FURTHER ORDERED that a Doe Defendant who receives a copy of
the Subpoena and this Order will have a period of 60 days to file any motions with
this Court contesting the Subpoena (including a motion to quash or modify the
Subpoena), as well as any request to litigate the Subpoena anonymously. The ISP
may not disclose any Doe Defendant’s identifying information to Strike 3,
or its employees or agents, at any time before the expiration of this 60-day
period. Additionally, if a Doe Defendant or ISP files a motion to quash the Subpoena,
the ISP may not turn over any information to Strike 3, or its employees or agents,
until the issues set forth in the motion have been addressed and the Court issues an
Order instructing the ISP to resume in turning over the requested discovery; and
IT IS FURTHER ORDERED that if the 60-day period within which a Doe
Defendant may contest or otherwise move with respect to a Subpoena lapses without
such action, the ISP will have a period of ten days to produce the information
responsive to the Subpoena to Strike 3 or file its own motion to quash if it so chooses.
In the event a Doe Defendant or ISP moves to quash or modify a Subpoena, or to
proceed anonymously, he or she shall at the same time as his or her filing also notify
the ISP so that the ISP is on notice not to release the Doe Defendant’s contact
information to Strike 3, or its employees or agents, until the Court rules on any such
motion; and
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IT IS FURTHER ORDERED that an ISP receiving a Subpoena shall confer
with Strike 3 and shall not assess any charge in advance of providing the information
requested therein. If an ISP elects to charge for the costs of production, it shall
provide a billing summary and cost report to Strike 3; and
IT IS FURTHER ORDERED that any information ultimately disclosed to
Strike 3 in response to the Subpoena may be used by Strike 3 solely for the purpose
of protecting its rights as set forth in each Complaint; and
IT IS FURTHER ORDERED that until such further Order of the Court, each
case identified in the caption above shall be litigated in the name of a “John Doe”
defendant, regardless of what information is ultimately disclosed pursuant to the
Subpoena.
Dated:

Central Islip, New York
April 9, 2018

SO ORDERED:
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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