Strike 3 Holdings LLC v. Doe

Filing 8

ORDER signed by Chief Judge Pamela Pepper on 3/7/2025 GRANTING 3 plaintiff's motion for discovery prior to Rule 26(f) conference. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STRIKE 3 HOLDINGS, LLC,
Plaintiff,
Case No. 25-cv-277-pp
v.
JOHN DOE
subscriber assigned IP address 184.58.204.137,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO SERVE
THIRD-PARTY SUBPOENA PRIOR TO RULE 26(F) CONFERENCE
(DKT. NO. 3)

On February 14, 2025, the plaintiff filed a complaint alleging that an
unknown individual (the defendant) engaged in direct copyright infringement.
Dkt. No. 1. The plaintiff indicates it “is the owner of award-winning, critically
acclaimed adult motion pictures.” Id. at ¶2. The plaintiff alleges that, “[u]sing
the BitTorrent protocol, Defendant is committing rampant and wholesale
copyright infringement by downloading [the plaintiff]’s motion pictures as well
as distributing them to others.” Id. at ¶4. The plaintiff has filed a motion for
leave to serve a third-party subpoena prior to a Rule 26(f) conference because it
believes it will be able to identify the defendant through this third-party
subpoena. Dkt. No. 3.

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I.

The Plaintiff’s Motion to Expedite Discovery
On March 4, 2025, the plaintiff filed a motion for leave to serve a third-

party subpoena prior to a Rule 26(f) conference. Dkt. No. 3. The plaintiff alleges
that—through its forensic software (“VXN Scan”)—it discovered that the
defendant’s IP address was illegally distributing several of the plaintiff’s motion
pictures. Dkt. No. 4 at 1. The plaintiff notes that “[t]his IP address is assigned
to Defendant by his or her Internet Service Provider (‘ISP’), which is the only
party with the information necessary to identify Defendant by correlating the IP
address with John Doe’s identity.” Id. at 1-2. The plaintiff “now seeks leave to
serve limited, immediate discovery on Defendant’s ISP, Spectrum, so that
Plaintiff may learn Defendant’s identity, investigate Defendant’s role in the
infringement, and effectuate service.” Id. at 2.
The plaintiff argues that the court has the authority to permit expedited
discovery under Rule 26(d) of the Federal Rules of Civil Procedure. Id. at 4
(citing Wuluvarana v. Does, No. 22-cv-982-pp, 2023 WL 183874, at *3 (E.D.
Wis. Jan. 13, 2023)). The plaintiff contends that “[a]lthough different standards
exist for the evaluation of expedited discovery requests, district courts within
this Circuit generally evaluate ‘the entirety of the record to date and the
reasonableness of the request in light of all the surrounding circumstances.’”
Id. at 5 (quoting Kohler Co. v. Nulka Grp. Storefront on www.amazon.com, No.
23-CV-0372-BHL, 2023 WL 2919831, at *1 (E.D. Wis. Mar. 23, 2023) (citations
omitted)). The plaintiff claims that a court assessing a subpoena to an ISP—

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seeking the identifying information of a subscriber who is a party to litigation—
should consider several factors, including:
(1) the concreteness of the plaintiff’s showing of a prima facie claim
of actionable harm, . . . (2) the specificity of the discovery request,
. . . (3) the absence of alternative means to obtain the subpoenaed
information, . . . (4) the need for the subpoenaed information to
advance the claim, . . . and (5) the objecting party’s expectation of
privacy.
Id. (quoting Malibu Media, LLC v. Doe, No. 18-5792, 2019 WL 7876473, at *2
(N.D. Ill. Jan. 2, 2019)).
The plaintiff argues it has satisfied all five factors outlined in Malibu
Media, LLC, 2019 WL 7876473, and should thus be granted leave to issue a
third-party subpoena on Spectrum. Id. at 5-9. First, the plaintiff claims its
complaint shows the elements of direct copyright infringement—i.e., “(1)
ownership of a valid copyright, and (2) copying of constituent elements of the
work that are original[,]” Id. (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991))—by stating:
(1) “Plaintiff is the owner of the Works, which [are] an original work
of authorship”; (2) “[d]efendant copied and distributed the
constituent elements of Plaintiff’s Works using the BitTorrent
protocol”; and (3) “[a]t no point in time did Plaintiff authorize, permit
or consent to Defendant’s distribution of its Works, expressly or
otherwise.”
Id. at 6 (quoting Dkt. No. 1 at ¶¶ 48-50). Second, the plaintiff contends that its
“subpoena is limited and only ‘seeks concrete and narrow information: the
name and address of the subscriber associated with [Doe Defendant’s] IP
address[.]’” Id. at 7 (quoting John Wiley & Sons, Inc. v. Doe, 284 F.R.D. 185,
190 (S.D.N.Y. 2012)). Third, the plaintiff asserts that “[s]ince there is no public
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registry of what IP addresses correspond to which subscribers, Plaintiff’s
subpoena is necessary to advancing litigation.” Id. at 8 (citing BMG Rts. Mgmt.
(US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018)). Fourth,
the plaintiff avers that the subpoenaed information is necessary to advance its
claim because “[t]his case cannot move forward unless the defendants’ true
identities are ascertained, and a subpoena appears to be the only means by
which this might be accomplished.” Id. (quoting Kohler, 2023 WL 2919831, at
*2). Finally, the plaintiff contends that the defendant's minimum privacy
interest is substantially outweighed by the plaintiff's interest in protecting its
copyrights from mass BitTorrent infringers. Id. at 9 (citing Third Degree Films,
Inc. v. Does 1-2010, No. 4:11 MC 2, 2011 WL 4759283, at *5 (N.D. Ind. Oct. 6,
2011)).
II.

Legal Standard
Rule 26(d) of the Federal Rules of Civil Procedure states that a party may

not seek discovery “from any source before the parties have conferred as
required by Rule 26(f), except . . . when authorized . . . by court order.” Fed. R.
Civ. P. 26(d)(1). “The federal rules do not provide a standard for determining
when a court may authorize discovery before the defendants have been served,”
Wuluvarana, 2023 WL 183874, at *3, but “[t]he prevailing view in this Circuit
is that the movant must demonstrate ‘good cause for the request,’” Strike 3
Holdings, LLC v. John Doe a/k/a Subscriber Assigned IP Address
72.133.216.27, Case No. 23-CV-1546-JPS, 2023 WL 9119843, at *1 (E.D. Wis.
Dec. 11, 2023) (quoting Kohler, 2023 WL 2919831, at *1). See also
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Wuluvarana, 2023 WL 183874, at *3 (collecting cases). “To assess whether the
movant has shown good cause, courts generally evaluate the entirety of the
record to date and the reasonableness of the request in light of all the
surrounding circumstances.” Strike 3 Holdings, 2023 WL 9119843, at *1
(quotations omitted). “A court may find that there is good cause ‘when the need
for expedited discovery, in consideration with the administration of justice,
outweighs the prejudice to the responding party.’” Wuluvarana, 2023 WL
183874, at *3 (quoting Roche Diagnostics Corp. v. Binson’s Hosp. Supplies,
Inc., No. 17-cv-00949, 2017 WL 11573559, at *1 (S.D. Ind. May 11, 2017). The
plaintiff correctly notes that factors pertinent to this analysis include:
(1) the concreteness of the plaintiff's showing of a prima facie claim
of actionable harm, . . . (2) the specificity of the discovery
request, . . . (3) the absence of alternative means to obtain the
subpoenaed information, . . . (4) the need for the subpoenaed
information to advance the claim, . . . and (5) the objecting party's
expectation of privacy.
Strike 3 Holdings, 2023 WL 9119843, at *1 (quoting Malibu Media, 2019 WL
7876473, at *2).
III.

Analysis
The plaintiff has shown good cause for its request for expedited discovery

by thoroughly addressing the five factors outlined in Malibu Media, 2019 WL
7876473, at *2. Dkt. No. 4 at 5-9.
To begin, the plaintiff states a prima facie claim of direct copyright
infringement. Id. at 5-6. “To establish infringement, two elements must be
proven: (1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.” Design Basics, LLC v. Signature
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Constr., Inc., 994 F.3d 879, 886 (7th Cir. 2021) (quoting Feist, 499 U.S. at
361). In the plaintiff’s complaint and its attached exhibits, the plaintiff
indicated it owns the adult motion pictures at issue and that the defendant
downloaded and distributed these motion pictures without the plaintiff's
authorization. Specifically, Exhibit A of the plaintiff’s complaint lists the works
the plaintiff alleges the defendant distributed and the copyright information for
each work—i.e., the date of publication, the date of registration, and the work’s
copyright registration number. Dkt. No. 1 at ¶37-42; Dkt. No. 1-1. This states a
prima facie claim for copyright infringement.
The plaintiff has made a specific request by seeking “concrete and
narrow information: the name and address of the subscriber associated with
[Doe Defendant’s] IP address.” Dkt. No. 4 at 7 (quoting John Wiley & Sons, 284
F.R.D. at 190). The court agrees that “[t]here is a reasonable likelihood that
this information will lead to information sufficient to identify and make possible
service upon the Doe defendants.” Id. (quoting Third Degree Films, 2011 WL
4759283, at *5).
Additionally, the plaintiff has explained that there are no alternative
means for it to obtain the subpoenaed information, namely the identity of the
internet subscriber associated with the subject IP address. Id. at 7-8. As the
plaintiff observes “there is no public registry of what IP addresses correspond
to which subscribers.” Id. at 8 (citing BMG Rts. Mgmt. (US) LLC v. Cox
Commc’ns, Inc., 881 F.3d 293, 299 (4th Cir. 2018)). However, ISPs, like
Spectrum, are responsible for assigning IP addresses as well as “know[ing] who
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an address is assigned to and how to get in contact with them.” Id. at 7. So, the
plaintiff’s proposed third-party subpoena is the appropriate avenue to identify
who is associated with the subject IP address.
Furthermore, the court acknowledges that the subpoenaed information is
necessary to advance the plaintiff’s claim. Id. at 8. “Although there is no
prohibition on filing suit against unknown defendants, ‘John Doe defendants
must be identified and served within [90] days of the commencement of the
action against them.’” Wuluvarana v. Does, Case No. 22-cv-982-pp, 2023 WL
8627670, at *8 (E.D. Wis. Dec. 13, 2023) (quoting Aviles v. Village of Bedford
Park, 160 F.R.D. 565, 567 (N.D. Ill. 1995)) (citing Fed. R. Civ. P. 4 advisory
committee’s note to 2015 amendment. (“The presumptive time for serving a
defendant is reduced from 120 days to 90 days.”)). So, the court agrees “[t]his
case cannot move forward unless the defendants’ true identities are
ascertained, and a subpoena appears to be the only means by which this might
be accomplished.” Dkt. No. 4 at 8 (quoting Kohler, 2023 WL 2919831, at *2).
Finally, the plaintiff persuasively argues that its interest in protecting its
copyrights outweighs the defendant’s privacy interest. Id. at 9. The plaintiff has
alleged a significant interest in protecting its copyright by explaining how
“piracy is a major threat and causes tremendous damage to [the plaintiff].” Id.
at 3. Meanwhile, a “John Doe’s privacy interest is minimal at best . . . [b]ecause
internet subscribers must convey their identity and other information to an ISP
in order to establish an account, they do not have a reasonable expectation of
privacy in their subscriber information.” Strike 3 Holdings, 2023 WL 9119843,
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at *2 (quotations omitted). In balancing the competing interests, the court
agrees that the plaintiff’s interest in protecting its copyrights outweighs the
defendant’s privacy interest.
Because the plaintiff has shown good cause for its request for expedited
discovery, the court grants the plaintiff’s motion for leave to serve a third-party
subpoena prior to a Rule 26(f) conference. See Wuluvarana, 2023 WL 183874,
at *3 (“A court may find that there is good cause when the need for expedited
discovery, in consideration with the administration of justice, outweighs the
prejudice to the responding party.” (quotation omitted)). Despite granting the
plaintiff’s motion, the court cautions that the subscriber associated with the
subject IP may not be the alleged copyright infringer because “[m]any devices
and individuals may share the same IP address.” Strike 3 Holdings LLC v. Doe,
No. 23-CV-1152, 2023 WL 6148887, at *2 (E.D. Wis. Sept. 20, 2023). But the
court acknowledges that “[i]dentifying the subscriber may be merely the first
step in identifying the John Doe defendant.” Id. So, the court finds the plaintiff
has demonstrated good cause for expedited discovery and will allow the
plaintiff to work towards identifying the defendant through its third-party
subpoena.
IV.

Conclusion
The court GRANTS the plaintiff’s motion for leave to serve a third-party

subpoena prior to a Rule 26(f) conference. Dkt. No. 3.
The court ORDERS that Spectrum must provide a copy of the subpoena
to John Doe and any other affected user as soon as possible after service of the
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subpoena. Spectrum and any affected user must have fourteen (14) days from
the date of service of the subpoena to object to the subpoena under Federal
Rule of Civil Procedure 45(d)(2)(B). Spectrum must not disclose John Doe’s
identifying information, or such information for any other affected user, during
that fourteen-day period (or if a timely objection is served, unless and until the
court so orders). If an objection is served, Spectrum must preserve any
material responsive to the subpoena for a period of no less than ninety (90)
days to allow the plaintiff to file a motion to compel, if the plaintiff so desires.
Dated in Milwaukee, Wisconsin this 7th day of March, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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