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LLC v. Doe

United States District Court, D. Connecticut

November 1, 2017

STRIKE 3 HOLDINGS, LLC, Plaintiff,
v.
JOHN DOE, subscriber assigned IP address 24.44.241.209, Defendant.

          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.

         I. INTRODUCTION

         Plaintiff, 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.[1] Through its hired investigator, IPP International U.G. ("IPP"), Strike 3 has learned that Defendant Doe's Internet Protocol ("IP") address (24.44.241.209) was used to illegally distribute several of Strike 3's movies.[2] Doc. 9-1, at 4, Doc. 9-3 (Fieser DecL), ¶ 7.[3] 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.

         According to Plaintiff, IPP's investigations have revealed that Defendant used the BitTorrent protocol to illegally distribute its movie "Loosen Up" on August 29, 2017.[4] 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 on-going." Id.

         Strike 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.[5]

         II. DISCUSSION

         In 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 173.68.5.86, 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)).

         When 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 cause standard.").

         In the 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.

         Examining 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) (same).

         Strike 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 the certificate.").

         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 ...


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