STRIKE 3 HOLDINGS, LLC
v.
DOE
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The court granted the plaintiff's motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference, allowing discovery of the defendant's identity.
Plaintiff sued for copyright infringement, identifying the defendant only by IP address. Plaintiff sought to subpoena the ISP to identify the defendan…
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v. JOHN DOE, subscriber assigned IP address 108.227.119.54, an individual,
Defendant. ___________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO RULE 26(f) CONFERENCE
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Leave to Serve a Third-Party Subpoena Prior to Rule 26(f) Conference (“Motion”), [ECF No. 6]. Having carefully considered the Motion and the record, and being otherwise fully advised, it is hereby ORDERED AND ADJUDGED that the Motion is GRANTED as follows.
BACKGROUND
In its Complaint, [ECF No. 1], Plaintiff alleges that Defendant has engaged in ongoing copyright infringement of Plaintiff’s motion pictures by both downloading the motion pictures and distributing them to others “on a grand scale.” See Compl. ¶¶ 1–5. Because Defendant only used the internet, Defendant is known to Plaintiff only by Defendant’s Internet Protocol (“IP”) address (assigned to Defendant by Defendant’s Internet Service Provider (“ISP”)). Id. Plaintiff now moves the Court for leave to serve a third-party subpoena prior to a Rule 26(f) conference. Plaintiff seeks to serve limited, immediate discovery on Defendant’s ISP, AT&T Internet, in the form of a Rule 45 subpoena, so that Plaintiff may learn Defendant’s identity, investigate its role in the infringement, and effectuate service. Mot. at 1.
ANALYSIS
Pursuant to Federal Rule of Civil Procedure 26(d)(1), except for circumstances not applicable here, a party may not propound discovery in advance of a Rule 26(f) conference absent a court order. In determining whether to permit early discovery, courts generally apply a good cause standard. See, e.g., Sterling v. Doe, No. 21-CV-723, 2021 WL 3134723, at *1 (M.D. Fla. June 8, 2021); Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 76.26.184.222, No. 21-CV-727, 2021 WL 3129308, at *1 (M.D. Fla. May 12, 2021); Plastic Movie Ltd. v. Doe, No. 15-CV-60690, 2015 WL 12843766, at *1 (S.D. Fla. Apr. 14, 2015); Malibu Media, LLC v. John Doe, No. 13-CV-259, 2013 WL 2154818, at *1 (M.D. Fla. May 17, 2013). Courts have found that certain factors are relevant to determining whether good cause exists to grant leave for a Rule 45 subpoena. These include: “(1) whether Plaintiff has made out a prima facie claim of copyright infringement, (2) the specificity of the discovery requested, (3) the absence of alternative means to obtain subpoenaed information, (4) necessity for the subpoenaed information, and (5) Defendant’s expectation of privacy.” Plastic Movie Ltd., 2015 WL 12843766 at *1 (citing Arista Recs., LLC v. Doe 3, 604 F. 3d 110, 119 (2d Cir. 2010)). Upon carefully considering the above-listed factors, the Court concludes that good cause exists for the expedited discovery sought by Plaintiff.1 Plaintiff has established a prima facie claim
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion, [ECF No. 6], is GRANTED. 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to provide Plaintiff with the true name and address of the Defendant to whom the ISP assigned an IP address as set forth on Exhibit A to the Complaint. Plaintiff shall attach to any such subpoena a copy of this Order. 3. If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5), it shall then comply with 47 U.S.C. § 551(c)(2)(B), by sending a copy of this Order to the Defendant.
identity.” Mot. at 4. The Court is specifically relying upon these representations from Plaintiff and Plaintiff’s counsel in entering this Order and expects each of these representations to be honored by Plaintiff and Plaintiff’s counsel. 4. Any information and documents received by Plaintiff pursuant to the subpoena shall remain confidential, shall only be used for purposes of this litigation, and shall be handled and utilized by Plaintiff and its counsel in a professional and ethical manner. DONE AND ORDERED in Miami, Florida, this 13th day of November, 2023.