United States District Court, D. New Jersey, Camden Vicinage
SCHNEIDER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the “Motion for Leave to
Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference” (“Motion”) [Doc. No. 4] filed
by plaintiff, Strike 3 Holdings, LLC (“Strike
3”). Plaintiff's motion alleges the John
Doe defendant assigned to IP address 126.96.36.199 infringed
its copyrighted works. Plaintiff's only identifying
information for defendant is the IP address. Accordingly,
plaintiff seeks limited discovery in advance of the
Fed.R.Civ.P. 26(f) conference so that plaintiff may obtain
defendant's name and address from his or her internet
service provider (“ISP”), Verizon Online LLC
(“Verizon”). The Court exercises its discretion
to decide plaintiff's motion without oral argument. See
Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the reasons to be
discussed, plaintiff's motion is GRANTED.
holds the copyright to a multitude of adult films. See
Declaration of Greg Lansky, Ex. A [Doc. No. 4-2]; Compl. at
¶ 2 [Doc. No. 1]. Plaintiff alleges defendant used a
file distribution network known as BitTorrent to copy and
distribute plaintiff's copyrighted films to others. See
Compl. at ¶¶ 23; Declaration of Tobias Fieser, Ex.
B [Doc. No. 4-3] (“Fieser Decl.”).
discovered defendant's infringement through reports from
its third-party investigator, IPP International UG
(“IPP”). See Compl. at ¶ 24. IPP, through
its employee Tobias Fieser, initially identified defendant
while monitoring the BitTorrent file distribution network for
the presence of potentially infringing transactions. Fieser
Decl. at ¶¶ 5, 7. IPP's forensic servers
connected to an electronic device registered to
defendant's IP address. Id. at ¶ 7. After
the connection, defendant's IP address was documented
distributing multiple Strike 3 copyrighted movies.
Id. Thereafter, plaintiff filed suit against
defendant alleging direct infringement of its copyrighted
works. See Compl. at ¶¶ 30-32.
order to identify the actual defendant, plaintiff seeks leave
to file a Fed.R.Civ.P. 45 subpoena on defendant's ISP,
Verizon. Mot. at 2. The subpoena would
direct Verizon to divulge the “true
name and address” of defendant. Id.
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense.” Fed.R.Civ.P. 26(b). However, despite
the broad scope of discovery, parties are generally barred
from seeking discovery before the parties participate in a
conference in conformance with Rule 26(f). Fed.R.Civ.P.
26(d)(1). Nonetheless, in certain circumstances a court
“may grant [a party] leave to conduct discovery prior
to” the Rule 26(f) conference. Malibu Media, LLC v.
John Doe subscriber assigned IP address 188.8.131.52,
C.A. No. 16-942 (KM/MAH), 2016 WL 952340, at *1 (D.N.J. Mar.
14, 2016) (citing Better Packages, Inc. v. Zheng,
No. 05-4477 (SRC), 2006 WL 1373055, at *2 (D.N.J. May 17,
determine if expedited discovery is appropriate a court
should apply a “good cause” test. Malibu Media,
LLC v. Doe, C.A. No. 15-8940 (MCA/MAH), 2016 WL 614414, at *2
(D.N.J. Feb. 16, 2016); Century Media, Ltd. v. John Does
1-77, C.A. No. 12-3911 (DMC/JAD), 2013 WL 868230, at *2
(D.N.J. Feb. 27, 2013). “Good cause exists
where the need for expedited discovery, in consideration of
the administration of justice, outweighs the prejudice to the
responding party.” Malibu Media, 2016 WL 614414, at *1
(internal citations omitted). Further, a court should
consider (1) the timing of the request in light of the formal
start to discovery; (2) whether the request is narrowly
tailored; (3) the purpose of the requested discovery; (4)
whether discovery burdens the defendant; and (5) whether
defendant can respond to the request in an expedited manner.
Better Packages, 2006 WL 1373055, at *3.
contends there is good cause for this Court to grant the
motion because: 1) it makes a prima facie claim for direct
copyright infringement, 2) it is seeking limited and specific
information that is necessary to serve defendant, 3) there
are no alternative means to discover defendant's true
identity, 4) the subpoenaed information is necessary to
advance the infringement claim, and 5) defendant's
minimal privacy interest is outweighed by plaintiff's
interest in protecting its copyrights. Mot. at 6-12.
Court finds plaintiff has demonstrated good cause to serve a
Rule 45 subpoena on Verizon before a Rule
26(f) conference. This ruling is consistent with other
holdings in similar cases. See, e.g., Manny Film LLC v.
Doe Subscriber Assigned IP Address 184.108.40.206, 98
F.Supp.3d 693, 696 (D.N.J. 2015) (finding good cause to allow
the plaintiff to discover the name and address of an IP
subscriber); Malibu Media, 2016 WL 614414, at *2 (same); Good
Man Prods., Inc. v. Doe, C.A. No. 14-7906 (ES/MAH), 2015 WL
892941, at *3 (D.N.J. Mar. 2, 2015) (same).
Courts impose safeguards to protect the privacy rights of
potentially innocent third parties. See Century Media, Ltd.,
2013 WL 868230, at *3-4 (limiting the subpoena to the name
and address of the account holder); Manny Film, 98
F.Supp.3d at 696 (limiting the subpoena to the name and
address of the account holder and requiring the ISP to
provide notice to the subscriber in order to provide the
subscriber an opportunity to challenge the subpoena before
the ISP releases the information requested). The Court adopts
the reasoning of these cases, and thus, will limit
plaintiff's discovery request to ensure an innocent party
is not unduly burdened.
for the foregoing reasons, IT IS HEREBY ORDERED this 23rd day
of April, 2018 that plaintiff's “Motion for Leave
to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference” [Doc. No. 4] is GRANTED; and it is further
that plaintiff's “Motion for an Extension of Time
Within Which to Effectuate Service of Process in this
Matter” [Doc. No. 5] is GRANTED. Plaintiff shall