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LLC v. Doe

United States District Court, E.D. Michigan, Southern Division

May 28, 2019

STRIKE 3 HOLDINGS, LLC, Plaintiff,
v.
JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 24.128.179.251, Defendant.

          Denise 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.

         This 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.

         I. BACKGROUND

         This is 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.)

         II. ANALYSIS

         Federal 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).

         Courts 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).

         Having 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 modified below).[1]

         III. CONCLUSION

         Accordingly, Plaintiff's Motion (DE 4) is GRANTED subject ...


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