Facts
- Strike 3 Holdings, LLC owned copyrights in certain adult-entertainment films.
- Strike 3 alleged that an unknown person, identified as John Doe and associated with IP address 108.51.209.163, used BitTorrent to download and distribute Strike 3’s copyrighted works without authorization.
- Strike 3 alleged it used geolocation and related investigative methods to trace the IP address involved in the alleged infringement to a physical address.
- Strike 3 asserted that Doe’s internet-service provider was the only entity able to match the IP address (at the relevant time) to a specific subscriber’s name and address.
- Strike 3 filed a copyright infringement action in the United States District Court for the District of Columbia against the Doe defendant.
- Before any Federal Rule of Civil Procedure 26(f) conference, Strike 3 moved for leave to serve a third-party subpoena on the ISP to obtain identifying information so it could learn Doe’s identity, investigate Doe’s role, amend its pleading if needed, and accomplish service of process.
Issues
- Whether Strike 3 showed good cause under Federal Rule of Civil Procedure 26(d)(1) to obtain early discovery by serving a subpoena on the ISP to identify the Doe defendant associated with IP address 108.51.209.163 before the Rule 26(f) conference.
Decision
- The court granted Strike 3’s motion for early discovery.
- The court authorized Strike 3 to serve a third-party subpoena on the ISP to obtain information sufficient to identify and serve the subscriber associated with IP address 108.51.209.163.
- In finding good cause, the court relied on Strike 3’s showing that the ISP was the only source able to correlate the IP address to a person and that the case could not proceed without that identifying information.
- The court also considered Strike 3’s showing supporting a likelihood that the court could exercise jurisdiction over the defendant.
Legal Principles
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Discovery generally may not begin before the parties confer under Rule 26(f), but Rule 26(d)(1) permits a court to authorize earlier discovery by order.
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A party seeking discovery before a Rule 26(f) conference must show good cause.
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Good cause for early third-party discovery may be found when:
- the plaintiff has alleged a plausible infringement claim against an unknown defendant identified by a specific IP address and time period,
- the identifying information is solely within the control of a third party (such as the ISP), and
- the action cannot move forward—particularly as to naming and serving the defendant—without that limited discovery.
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In assessing good cause, a court may also consider whether the plaintiff has made a sufficient preliminary showing that the defendant is likely subject to the court’s jurisdiction, so the requested discovery is not futile.
Conclusion
The District of Columbia federal court allowed Strike 3 to take early, targeted discovery by subpoenaing the ISP for subscriber-identifying information linked to IP address 108.51.209.163 because Strike 3 showed good cause: the ISP was the only source that could identify the Doe defendant, the case could not proceed without that information, and Strike 3 made a preliminary showing supporting the court’s jurisdiction.