United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis United States Magistrate Judge
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
LEAVE TO SERVE THIRD-PARTY SUBPOENA PRIOR TO RULE 26(fl
CONFERENCE (ECF #4)
D. Borman United States District Judge.
the Court is Plaintiff Strike 3 Holdings, LLC's
("Strike 3") Motion for Leave to
Serve Third Party Subpoena Prior to Rule 26(f) Conference.
Strike 3 filed suit on March 28, 2019, against a single
"John Doe" Defendant, identified only by the
subscriber Internet Protocol ("IP") address he or
she is alleged to have used to unlawfully download and share
Strike 3's allegedly copyrighted movies. On April 23,
109, Strike 3 filed the instant motion, seeking to discover
the identity of the John Doe named in the Complaint by
serving a subpoena on the Internet Service Provider
("ISP") associated with the identified IP address.
Strike 3 seeks permission to subpoena the ISP to obtain John
Doe's "true name and address."
Rule of Civil Procedure 26(d)(1) provides that "[a]
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except in a
proceeding exempted from initial disclosure under Rule
(26)(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order." In exercising the
discretion granted by Rule 26(d)(1) to order early discovery,
several courts in this District, and elsewhere across the
country, have applied a good-cause standard in similar
file-sharing cases to determine whether such discovery should
be authorized. See Cobbler Nevada, L.L.C v. Does
1-15, No. 15- 11871, 2015 WL 4276082, at *1 (E.D. Mich.
July 14, 2015); Malibu Media, LLC v. Doe, No.
13-12202, 2013 WL 12184289, at *1 (E.D. Mich. June 25, 2013);
Third Degree Films, Inc. v. Does 1-72, No. 12-14106,
2012 WL 12931709, at *1 (E.D. Mich. Nov. 13, 2012). In these
copyright infringement cases, courts have further refined the
"good cause" standard, permitting limited discovery
prior to a Rule 26(f) conference related to the identity of a
John Doe defendant where: "(1) the plaintiff makes a
prima facie showing of a copyright infringement claim; (2)
the plaintiff submits a specific discovery request; (3) the
information sought is limited in scope and not available
through alternative means; and (4) there is a minimal
expectation of privacy on the part of the defendant."
Malibu Media, 2013 WL 12184289, at *1 (citing
Arista Records, LLC v. Doe, 604 F.3d 110, 119 (2d
Cir. 2010)). See also Malibu Media, LLC v. Doe, No.
13-12224, 2013 WL 12180742, at * 1 (E.D. Mich. June 5, 2013);
Third Degree Films, 2012 WL 12931709, at *1.
case, the Court concludes that Strike 3 has demonstrated good
cause for early discovery, pleading a plausible claim of
copyright infringement and specifically identifying the
information sought. As several courts have done in similar
John Doe cases, this Court concludes that defendants do not
have a reasonable expectation of privacy in their IP
addresses. See Cobbler Nevada, 2015 WL 4276082, at *
1 (citing Hard Drive Prods, v. Does 1-48, No.
11-9062, 2012 WL 2196038, at *4 (N.D. 111. June 14, 2012));
First Time Videos, LLC v. Does 1-500, 276 F.R.D.
241, 247 (N.D. 111. 2011). The information sought by
Plaintiff is also necessary, otherwise unavailable, and
narrowly tailored to the limited purpose of discovering the
identity of the individual associated with the identified IP
Strike 3's motion is GRANTED IN PART AND SUBJECT TO THE
1. Strike 3 shall attach a copy of this Order to the subpoena
it issues to John Doe's ISP.
2. Strike 3's subpoena to the ISP may seek ONLY the
following information regarding John Doe:
a. full name, and
b. residential address.
3. Within seven (7) days of its receipt of
the subpoena, the ISP shall reasonably attempt to identify
the subject John Doe subscriber and provide him or her with a
copy of the subpoena and this Order.
4. The ISP shall have twenty-one (21) days
from the service of the subpoena to move to quash or
otherwise object to the subpoena. John Doe shall have
fourteen (14) days from receipt of the
subpoena from the ISP to move to quash or otherwise object to
the subpoena. The ISP shall preserve any subpoenaed
information pending the resolution of any timely filed motion
to quash. Where no motion is filed by either the ISP or John
Doe within the time periods prescribed herein, the ISP shall
produce to Strike 3 the information identified in Paragraphs
2(a) and 2(b) above.
5. Plaintiff may only use the information disclosed in
response to a Rule 45 subpoena served on the ISP for the
purpose of protecting and enforcing Plaintiffs rights as
alleged in its Complaint.
addition, IT IS ORDERED that going forward in this case, and
in all future cases of this type assigned to Judge Borman,
the Defendant shall be identified in all public filings only
as "John Doe" until further Order of this Court.
Also, no party shall use the name, address, or any other