Strike 3 Holdings, LLC v. Doe

Filing 7

ORDER: (1) granting Plaintiff's Motion for Leave to Serve Third-Party Subpoena Prior to Rule 26(f) Conference; and (2) issuing a Protective Order. Signed by Judge Timothy S. Black on 2/7/2024. (rrs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
vs.
JOHN DOE subscriber assigned IP
Address 76.224.7.175,
Defendant.

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Case No. 2:24-cv-348
Judge Timothy S. Black

ORDER:
(1) GRANTING PLAINTIFF’S MOTION FOR LEAVE TO SERVE THIRDPARTY SUBPOENA PRIOR TO RULE 26(f) CONFERENCE; AND
(2) ISSUING A PROTECTIVE ORDER
This civil case is before the Court on Plaintiff’s motion for leave to serve a thirdparty subpoena prior to the Rule 26(f) conference. (Doc. 6).
Generally, a party “may not seek discovery from any source before the parties
have conferred as required by Rule 26(f),” but the Federal Rules allow early discovery
“when authorized . . . by court order.” Fed. R. Civ. P. 26(d)(1). Courts within the Sixth
Circuit require a showing of good cause in order to authorize expedited discovery.
Malibu Media, LLC v. Doe, No. 2:15-CV-1202, 2015 WL 12732859, at *1 (S.D. Ohio
Apr. 13, 2015) (citation omitted). Good cause may be found based upon “(1) allegations
of copyright infringement, (2) the danger that the ISP will not preserve the information
sought, (3) the narrow scope of the information sought, and (4) the conclusion that
expedited discovery would substantially contribute to moving the case forward.” Id. at
*1 (citations omitted).

Having reviewed the complaint, the instant motion, and the accompanying
memorandum of points and authorities, the Court finds that Plaintiff has demonstrated
good cause for early discovery. Plaintiff has alleged a claim for direct copyright
infringement and has narrowly tailored the discovery it seeks to identifying the alleged
infringer. Moreover, the information sought is necessary to prosecute Plaintiff’s claim
and is otherwise unavailable.
Accordingly, Plaintiff’s motion for leave to serve a third-party subpoena prior to
the Rule 26(f) conference is GRANTED, subject to the following:
1. Plaintiff may serve a Rule 45 subpoena on the Internet Service Provider
(“ISP”) associated with the identified IP address, to obtain information to
identify Defendant’s full name and residential address. Plaintiff is not
permitted to seek or obtain Defendant’s email address(es) or telephone
number(s). Plaintiff may use the information disclosed in response to a
Rule 45 subpoena served on the ISP only for the limited purpose of
protecting and enforcing its rights as alleged in the Complaint.
2. The return date for the subpoena shall be no earlier than sixty (60) days
from the date of service, and the ISP shall not produce any responsive
information to Plaintiff before the return date of the subpoena. Plaintiff
shall attach a copy of this Order to the subpoena.
3. Within fourteen (14) days of receipt of the subpoena, the ISP shall
reasonably attempt to identify the subject John Doe subscriber and give
said subscriber written notice of the subpoena, which may include e-mail
notice. The ISP’s notice to John Doe subscriber shall include a copy of
the subpoena and this Order.
4. Any party seeking to move to quash the subpoena must do so no later
than twenty-eight (28) days after the date on which the ISP gives written
notice to John Doe subscriber. In the event a motion to quash is filed,
Plaintiff’s counsel shall immediately serve a copy of the motion on the
ISP. Plaintiff’s counsel shall further instruct the ISP that, pursuant to this
Order, the ISP shall preserve any subpoenaed information, pending the
resolution of the motion to quash.

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5. Further, considering the sensitive and personal nature of Plaintiff’s
allegations, the risk of false positives when identifying ISP subscribers,
and the public’s common law right of access to court proceedings, the
Court finds that permitting Defendant to proceed anonymously for a
limited time is reasonable. See e.g., Strike 3 Holdings, LLC v. Doe, No.
19-10720, 2019 WL 2523591, at *1 (E.D. Mich. June 19, 2019).
Accordingly, pursuant to Federal Rule of Civil Procedure 26(c), the Court
issues a protective order. Defendant may proceed anonymously until
discovery suggests that they are the individual connected to the IP address
in Strike 3’s non-party subpoena. 1 Parties may move to modify this
protective order at any time.
IT IS SO ORDERED.
Date:

2/7/2024

s/Timothy S. Black
Timothy S. Black
United States District Judge

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To ensure anonymity consistent with this Order, Defendant shall be identified on the public
docket and in any public filings as “John Doe,” with no further identifying or contact
information. However, if Defendant submits any documents for filing pro se, such documents
shall be submitted to the Clerk’s Office containing Defendant’s full name and contact
information. The Court will file a redacted copy on the public docket and further file an
unredacted copy UNDER SEAL.

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