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 18.104.22.168 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”), Comcast Cable
Communications, LLC (“Comcast”). 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
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
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,
Comcast. Mot. at 2. The subpoena would direct Comcast to
divulge the “true name and address” of defendant.
“[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 22.214.171.124,
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 Comcast 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 126.96.36.199, 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)
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 24th 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. 6] is GRANTED. Plaintiff shall