United States District Court, E.D. Michigan, Southern Division
Page Hood, Chief Judge.
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f)
CONFERENCE (DE 4)
Anthony P. Patti, Magistrate Judge.
matter is before the Court for consideration of Plaintiff
Strike 3 Holdings, LLC's motion for leave to serve a
third-party subpoena prior to Rule 26(f) conference (DE 4).
Plaintiff filed suit on May 3, 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
Plaintiff's copyrighted movies using BitTorrent software.
(DE 1 ¶¶ 1-6, 12; DE 1-2.) On May 17, 2019,
Plaintiff filed the instant motion, in which it seeks to
discover John Doe's identity by issuing a subpoena on the
Internet Service Provider (“ISP”) associated with
the identified IP address. (DE 4.) For the reasons discussed
below, this Motion is GRANTED.
a copyright infringement case. Plaintiff purports to own
copyrights to various films, including the copyrighted works
at issue in this lawsuit. (DE 1 ¶¶ 2-3; DE 1-2.)
Plaintiff does not know the name of John Doe Defendant, but
indicates that it has identified Defendant through a unique
IP address that was involved in the alleged infringement. (DE
1 ¶ 5.) Among the affidavits provided in support of its
motion is one from Tobias Feiser of IPP International UG
(“IPP”), a company that provides forensic
investigation services to copyright owners. (DE 4-3
¶¶ 3-4.) Mr. Feiser avers that he found a person
using Defendant's IP address engaged in BitTorrent
transactions with regard to “multiple pieces” of
the copyrighted works alleged in the Complaint. (Id.
at ¶¶ 7, 9, 10, 12.)
Rule of Civil Procedure 26(d)(1) provides:
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.
Fed. R. Civ. P. 26(d)(1) (emphasis added). Although the
United States Court of Appeals for the Sixth Circuit has not
addressed the standard to be applied in such instances,
courts in this district have applied a “good
cause” standard to determine whether such expedited
discovery should be authorized. See Malibu Media, LLC v.
Doe, No. 14-14237, 2015 WL 224807, at *1 (E.D. Mich. Jan
15, 2015). This issue arises not infrequently in copyright
infringement cases where the identity of the infringer is not
known. See Arista Records, LLC v. Doe 3, 605 F.3d
110 (2d Cir. 2012).
have further developed the “good cause” standard.
Specifically, in copyright cases, the Court considers the
following factors to determine whether the issuance of
subpoenas to discover the identity of Doe defendants in
advance of a Rule 26(f) conference is proper: (1) whether the
plaintiff has made a prima facie showing of a
copyright infringement claim; (2) whether the plaintiff has
submitted a specific discovery request; (3) whether the
information sought is limited in scope and not available
through alternative means; (4) whether plaintiff has a
central need for the subpoenaed information; and (5) whether
there is minimal expectation of privacy on the part of the
defendant. Arista Records, 604 F.3d at 119;
Patrick Collins v. Does 1-21, No. 11-15232, (DE 5
therein) (E.D. Mich. Dec. 16, 2011).
reviewed the complaint, the instant motion, and the
accompanying memorandum of points and authorities, the Court
finds that Plaintiff has demonstrated good cause for early
discovery. It has stated a plausible claim for direct
copyright infringement (DE 1 ¶¶ 34-39) and
specifically identified the discovery sought, namely
“the true name and address of Defendant.” (DE 4
at 9, 15.) The Court also finds that defendants do not have a
reasonable expectation of privacy in their internet
subscriber information. See Hard Drive Prods. v.
Doe, No. 11-9062, 2012 U.S. Dist. Lexis 82927, at *10-11
(N.D. Ill. June 14, 2012). Furthermore, the information
sought is: (a) necessary to prosecute Plaintiff's claim;
(b) otherwise unavailable; and (c) narrowly tailored (as
Plaintiff's Motion (DE 4) is GRANTED