United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR TO RULE 26(f) CONFERENCE
CHARLES S. HAIGHT, JR. Senior United States District Judge.
Strike 3 Holdings, LLC ("Strike 3") brings this
copyright infringement action as the owner of original adult
motion pictures that are featured on its subscription-based
websites. See Doc. 9-2 (Declaration of Greg Lansky),
¶ 3. Through its hired investigator, IPP
International U.G. ("IPP"), Strike 3 has learned
that Defendant Doe's Internet Protocol ("IP")
address (18.104.22.168) was used to illegally distribute
several of Strike 3's movies. Doc. 9-1, at 4, Doc. 9-3
(Fieser DecL), ¶ 7. IPP employs forensic software to
identity IP addresses that infringers use to distribute
copyrighted works within the BitTorrent File Distribution
Network. Doc. 9-3 (Fieser Decl.), ¶ 5.
to Plaintiff, IPP's investigations have revealed that
Defendant used the BitTorrent protocol to illegally
distribute its movie "Loosen Up" on August 29,
2017. Id., ¶ 7. Moreover, IPP has
determined that Defendant is "a persistent infringer of
Strike 3's works, " having used the same IP address
to infringe on "at least 21 movies belonging to Strike
3." Id., ¶ 11. IPP has concluded that
"[t]he infringement appears consistent and
3 asserts that the only means it has to identify this
persistent infringer is through his assigned IP address.
Strike 3 has thus filed the pending motion for leave to serve
a third party subpoena on Optimum Online, Defendant's
Internet Service Provider ("ISP"), pursuant to Rule
45, Fed.R.Civ.P. See Doc. 9, at 1. By obtaining the
name and address of the Defendant, Plaintiff will be able to
properly identify and serve him, and thereby prosecute
Plaintiffs copyright infringement claim.
general, parties "may not initiate discovery prior to
satisfying the meet and confer requirement of Fed.R.Civ.P.
26(f)." Digital Sin, Inc. v. Does 1-176, 279
F.R.D. 239, 241 (S.D.N.Y. 2012). Specifically, under Rule
26(d)(1), Fed. R. Civ. P., "[a] party may not seek
discovery from any source before the parties have conferred
as required by Rule 26(f), " except in limited
proceedings delineated in Rule 26(a)(1)(B), or "when
authorized by these rules, by stipulation, or by court
order." "[C]ourts may in some instances order
earlier discovery." Digital Sin, 279 F.R.D. at
241 (citing Fed.R.Civ.P. 26(d)). See, e.g., Malibu Media,
LLC v. John Doe Subscriber Assigned IP Address 22.214.171.124,
No. l:16-CV-02462 (AJN), 2016 WL 2894919, at *2
(S.D.N.Y. May 16, 2016) ("[A] party may engage in
discovery before such a [26(f)] conference pursuant to a
court order.") (citing Fed.R.Civ.P. 26(d)(1)).
considering whether to grant a motion for expedited discovery
prior to a Rule 26(f) conference, courts apply a
"flexible standard of reasonableness and good
cause." Malibu Media, LLC, 2016 WL 2894919, at
*2 (gathering cases). See also Arista Records LLC v. Does
1-4, 589 F.Supp.2d 151, 152-53 (D. Conn. 2008) (applying
"good cause" standard to request for expedited
discovery) (citation omitted). See generally 8A
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2046.1 (3d ed. 2011)
("Although [Rule 26(d)] does not say so, it is implicit
that some showing of good cause should be made to justify
such an order, and courts presented with requests for
immediate discovery have frequently treated the question
whether to authorize early discovery as governed by a good
Second Circuit, in evaluating subpoenas seeking identifying
information from ISPs regarding subscribers who are parties
to copyright infringement litigation, courts have examined
the following factors:
(1) [the] concrete[ness of the plaintiffs] 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.
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d
Cir. 2010) (quoting Sony Music Entm 't, Inc. v. Does
1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)). If
"[application of these 'principal factors'
confirms that the Plaintiff is entitled" to the
requested subpoena, the motion for early discovery will be
granted for "good cause." Malibu Media,
LLC, 2016 WL 2894919, at *2.
the principal factors in detail, the plaintiff must first
state a prima facie claim for copyright infringement.
See, e.g., Sony Music Entm'tlnc, 326 F.Supp.2d
at 565. Specifically, the plaintiff must show: "(1)
ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original."
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,
Inc., 499 U.S. 340, 361 (1991). See also Urbont v.
Sony Music Entm't, 831 F.3d 80, 88 (2d Cir. 2016)
3 has alleged that it is the owner of the work at issue, the
"Loosen Up" movie, which is registered with the
United States Copyright Office as registration number
PA0002052848. Doc. 1 ("Complaint"), ¶¶
30-31; Doc. 9-1, at 9. Seealso 17 U.S.C. §
410(c) ("In any judicial proceedings the certificate of
a registration made before or within five years after first
publication of the work shall constitute prima facie evidence
of the validity of the copyright and of the facts stated in
addition, Strike 3 has made a plausible showing that wrongful
"copying" of that work has occurred. Plaintiff has
alleged that investigation by IPP has revealed and recorded
Defendant infringing the "Loosen Up" movie (on
August 29, 2017), as well as twenty-one of Plaintiff s others
movies, which are all registered with the United States
Copyright Office. Doc. 1, ¶¶ 23-27, 32-34.
Defendant allegedly downloaded Plaintiffs movies over the