United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F)
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
website. See Doc. 7-2 (Declaration of Greg Lansky),
¶3. Strike 3 asserts that Defendant John Doe
("Defendant"), identified only by his or her IP
address, has unlawfully distributed Plaintiff's
copyrighted adult films by using BitTorrent, a "a system
designed to quickly distribute large files over the
Internet." Doc. 1, at ¶17. Pursuant to Rule 26(d)
of the Federal Rules of Civil Procedure, Strike 3 has moved
for leave to serve a third-party subpoena on Defendant's
internet service provider ("ISP"), Frontier
Communications, for the limited purpose of discovering
Defendant's identity so that Strike 3 may serve Defendant
with process and proceed in litigating this case. Doc. 7. For
the reasons Strike 3 has presented in its motion and
supporting papers, and the discussion detailed below, the
Court will grant the motion for good cause, as limited by the
conditions delineated herein.
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), "[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." Fed.R.Civ.P. 26(d)(1).
"[C]ourts may in some instances order earlier
discovery." Digital Sin, Inc., 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. 1:16-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
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 (collecting 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.
2018) ("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 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.
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d
Cir. 2010) (quotation marks and citation omitted). If
"[a]pplication 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 (quotation marks and citation omitted).
the principal factors in detail, the plaintiff must first
state a prima facie claim for copyright infringement.
See, e.g., Sony Music Entm't, Inc. v. Does 1-40,
326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). 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).
owner of a copyright has exclusive rights to reproduce that
copyrighted work and to distribute copies to the public by
sale, transfer of ownership, rent, lease, or lending. 17
U.S.C. § 106. Moreover, a plaintiff is entitled to seek
statutory damages and attorney's fees under the United
States Copyright Act if its copyrighted work was registered
within three months of the first date of publication. 17
U.S.C. §§ 411(c)(2), 501.
plaintiff makes "a concrete, prima facie case of
copyright infringement by alleging ownership of the
registered copyright and alleging unlawful downloading,
copying, and distribution of this work by specifying the type
of technology used, the IP address from which the file was
accessed and shared, and the date and time of the
infringement." Malibu Media, LLC v. Doe, No.
14-CV-4808 (JS)(SIL), 2016 WL 4574677, at *6 (E.D.N.Y. Sept.
1, 2016) (quotation marks and citation omitted). See also
Sony Music, 326 F.Supp.2d at 565-66 ("[T]he use of
P2P [peer-to-peer] systems to download and distribute
copyrighted music has been held to constitute copyright
infringement." (collecting cases)); Patrick Collins,
Inc. v. John Doe 1, 945 F.Supp.2d 367, 375 (E.D.N.Y.
2013) ("Indeed, every court to have addressed this issue
has found a sufficiently alleged copyright infringement claim
based on BitTorrent technology, even when the defendant was
merely identified with an IP address.").
3 has alleged that it is the owner of the adult films at
issue. See Doc. 1, ¶31-2; Doc. 1-2. In
addition, Strike 3 has made a plausible showing that wrongful
"copying" of that work has occurred by alleging
that its investigator, IPP International UG
("IPP"), has established a direct TCP/IP connection
with the Defendant's IP address, as set forth in
Plaintiff' Exhibit A to its Complaint. Doc. 1, ¶24.
In particular, Strike 3 has alleged that IPP has established
that Defendant's IP address was used to unlawfully
download 138 of Plaintiff's copyrighted movies (the
"Works") from the BitTorrent file distribution
network. See Doc. 1-1. Under these circumstances,
Plaintiff has stated a prima facie case for actionable harm
due to copyright infringement.
in order to show "good cause" for early discovery,
the plaintiff must narrowly tailor and specify the
information sought by the discovery request. The information
requested in the subpoena must be limited, seeking
"concrete and narrow information: the name and address
of the subscriber associated with Doe [Defendant's] IP
address . . . . " John Wiley & Sons, Inc. v. Doe
Nos. 1-30,284 F.R.D. 185, 190 (S.D.N.Y. 2012). Courts
have labeled the subscriber's identity and address as
"highly specific, ” Malibu Media LLC,
2016 WL 4574677, at *6, recognizing that "[p]laintiffs
clearly need identification of the putative John Does in
order to serve process on them and prosecute their claims,
" UN4 Prods., Inc. v. Doe-126.96.36.199, No.
17-CV-3278(PKC)(SMG), 2017 WL 2589328, at *3 (E.D.N.Y. June
14, 2017) (citation and internal quotation marks omitted).
See also Sony Music, 326 F.Supp.2d at 566
("Ascertaining the identities and residences of the Doe
defendants is critical to plaintiffs' ability to pursue
litigation, for without this information, plaintiffs will be
unable to serve process."); Malibu Media LLC,
2013 WL 3732839, at *5 n.1 ("Discovery requests must be