Strike 3 Holdings, LLC v. Doe

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
STRIKE 3 HOLDINGS, LLC, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-03040 (RC/RMM)
)
JOHN DOE, )
Subscriber IP address 100.15.183.198 )
)
Defendant. )
)

MEMORANDUM OPINION

This case arises from the alleged illegal download and distribution of adult films to which

Plaintiff Strike 3 Holdings, LLC (“Strike 3”) owns the copyright. Strike 3’s Motion for Leave to

Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (“Motion”) is currently pending

before the Court. See ECF No. 3. Strike 3 seeks leave to obtain discovery from Verizon Fios,1

the Internet Service Provider (“ISP”) that provides service to the IP address used to download the

copyrighted materials. Specifically, Strike 3 proposes to serve a subpoena upon Verizon Fios to

obtain the name and address of the customer associated with that IP address, thereby identifying

Defendant John Doe. See Mem. in Supp. of Pl.’s Mot. for Leave to Serve a Third-Party

Subpoena Prior to a Rule 26(f) Conference at 2, ECF No. 3-2 (“Pl.’s Mem.”). After considering

the Motion, the pleadings, and relevant law, the Court GRANTS Strike 3 leave to serve its third-

party subpoena, but DENIES WITHOUT PREJUDICE Strike 3’s request for a protective order.

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Plaintiff refers to Defendant’s ISP as “Verizon Fios” in both its Complaint and briefing
on the present motion. See Compl. ¶ 5; Pl.’s Mem. at 1. Accordingly, the Court assumes
without deciding, for purposes of this Memorandum Opinion, that “Verizon Fios” is the
appropriate corporate entity to receive a subpoena.
Subject to the procedure described below, Strike 3 may serve a subpoena on Verizon Fios in

order to obtain the name and address of the Verizon customer associated with the IP address

100.15.183.198.

BACKGROUND

Plaintiff Strike 3 owns the copyright to numerous adult films. See Decl. of David

Williamson at ¶ 13, ECF 3-3 (“Williamson Decl.”). The Complaint alleges that Defendant, using

the IP address 100.15.183.198, illegally downloaded and distributed fifty seven of Strike 3’s

copyrighted motion pictures, in violation of the Copyright Act. See Compl. ¶¶ 4, 47–52; Decl. of

Patrick Paige at ¶ 13, ECF No. 3-4 (“Paige Decl.”). Strike 3 discovered the copyright violations

by using forensic software. See id.

Strike 3 has been unable to identify Defendant by name because only ISPs possess the

subscriber information necessary to link an individual customer to his or her IP address. See

Paige Decl. ¶ 28. Strike 3 now seeks leave to obtain expedited discovery from Verizon Fios, the

ISP associated with IP address 100.15.183.198. See Pl.’s Mem. at 1. Specifically, Strike 3

proposes to serve a limited Rule 45 subpoena to discover the name and address of the relevant

subscriber so it may further investigate—and prosecute—its claims. Id. at 2. Strike 3 further

guarantees that it will only use the information obtained to prosecute the claims brought in its

Complaint, and that it would consent to a protective order designed to protect the confidentiality

of the affected subscriber. Id.

LEGAL STANDARD

A. Request for Discovery Prior to Rule 26(f) Conference

Unless authorized by court order, no party may seek discovery prior to a Rule 26(f)

conference. See Fed. R. Civ. P. 26(d)(1); see also Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203,

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1207 (D.C. Cir. 2020). Such an order is the “only potential avenue for discovery” in cases in

which plaintiffs need information from a third party to identify possible defendants. AF

Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014).

To obtain discovery at that stage, a plaintiff must “have at least a good faith belief that

[expedited] discovery will enable it to show that the court has personal jurisdiction over the

defendant.” Id. After that requirement had been met, courts in this Circuit traditionally

permitted expedited discovery if the plaintiff established good cause to obtain the discovery. See

Malibu Media, LLC v. Doe, 64 F. Supp. 3d 47, 49 (D.D.C. 2014) (citing Warner Bros. Records

Inc. v. Does 1–6, 527 F. Supp. 2d 1, 2 (D.D.C. 2007) (“[T]he Court finds that plaintiffs have

made a showing of good cause for the discovery they seek.”)); Arista Records LLC v. Does 1-19,

551 F. Supp. 2d 1, 6–7 (D.D.C. 2008) (noting the “overwhelming” number of cases where

plaintiffs sought to identify “Doe” defendants and courts “routinely applied” the good cause

standard to permit discovery). However, the D.C. Circuit has recently clarified that a court’s

analysis of whether to permit discovery must be grounded in the framework of Rule 26(b)—

under which relevance and proportionality are the dispositive factors. See Strike 3 Holdings, 964

F.3d at 1207 (“A district court's discretion to order discovery, whether before or after the parties

have conferred, is cabined by Rule 26(b)’s general limitations on the scope of discovery.”); In re

Clinton, 973 F.3d 106, 114 (D.C. Cir. 2020) (citing AF Holdings for same proposition). The

D.C. Circuit declined to expressly determine “whether the ‘good cause’ standard continues to

apply under the current version of Rule 26.” Strike 3 Holdings, 964 F.3d at 1214 n.2. However,

given that Rule 26 does not currently incorporate a good cause standard,2 the Court will evaluate

2
The good cause standard appears to stem from the pre-2015 version of Rule 26(b)(1),
which allowed courts to order discovery of relevant matters “for good cause.” Fed. R. Civ. P.
26(b)(1) (2015); see also AF Holdings, 752 F.3d at 995 (noting that discretion to order expedited

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Strike 3’s Motion by assessing the relevance and proportionality of the proposed discovery. See

generally Goodwin v. District of Columbia, 2021 WL 1978795, at *3 n.1 (D.D.C. May 18, 2021)

(conducting Rule 26 relevance and proportionality analysis to evaluate request for early

discovery instead of applying “good cause” standard).

B. Motion for Protective Order

Federal Rule of Civil Procedure 26(c) permits the Court, upon a showing of “good

cause,” to “issue an order to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1); see also Huthnance v.

District of Columbia, 255 F.R.D. 285, 296 (D.D.C. 2008) (“[G]ood cause exists under Rule 26(c)

when justice requires the protection of a party or a person from any annoyance, embarrassment,

oppression, or undue burden or expense.”) (quoting Fonville v. District of Columbia, 230 F.R.D.

38, 40 (D.D.C. 2005)). Protective orders may also be used to “limit the manner in which . . .

confidential information is to be revealed.” Univ. of Mass. v. Roslin Inst., 437 F. Supp. 2d 57, 60

(D.D.C. 2006). The party requesting the protective order generally bears the burden of showing

good cause “by demonstrating specific evidence of the harm that would result.” Jennings v.

Family Mgmt., 201 F.R.D. 272, 274–75 (D.D.C. 2001); Alexander v. FBI, 186 F.R.D. 71, 75

(D.D.C. 1998). Nonetheless, trial courts have broad discretion to issue and set the terms of a

protective order, and may do so sua sponte. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36

discovery is “cabined by Rule 26(b)(1)’s general requirements that a discovery order be ‘[f]or
good cause’ and relate to a ‘matter relevant to the subject matter involved in the action.’”).
However, the 2015 amendments to Rule 26(b) replaced the good cause standard and made
relevance and proportionality the touchstones for permitting discovery. See Fed. R. Civ. P.
26(b)(1); In re Clinton, 973 F.3d at 114 n.2 (discussing changes to Rule 26).

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(1984); Keaveney v. SRA Int'l, Inc., No. 13-00855, 2017 WL 1842544, *2 (D.D.C. May 3, 2017);

Edwards v. Gordon & Co., 94 F.R.D. 584, 587 (D.D.C. 1982).

DISCUSSION

The Proposed Discovery Is Both Relevant and Proportional to Strike 3’s Copyright
Infringement Claims.

The Federal Rules of Civil Procedure allow discovery “regarding any nonprivileged

matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”

Fed. R. Civ. P. 26(b)(1). Relevance is “construed broadly to encompass any matter that bears on,

or that reasonably could lead to other matter that could bear on any party's claim or defense.”

United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016) (quoting Oppenheimer

Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)) (internal quotation marks omitted). Rule

26(b)(1) directs courts to consider six factors when addressing proportionality: the importance of

the issues at stake, the amount in controversy, the parties’ relative access to the relevant

information, the parties’ resources, the importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discovery outweighs its benefits. See Fed. R.

Civ. P. 26(b)(1). “[N]o single factor is designed to outweigh the other factors in determining

whether the discovery sought is proportional.” Oxbow Carbon & Minerals LLC v. Union Pac.

R.R. Co., 322 F.R.D. 1, 6 (D.D.C. 2017).

A. Relevance

The name and address of the customer associated with the IP Address 100.15.183.198 is

relevant because it will help Strike 3 identify the John Doe Defendant. “It is well established

that plaintiffs are permitted to proceed against John Doe defendants so long as discovery can be

expected to uncover the defendant’s identity.” Strike 3 Holdings, 964 F.3d at 1210; see also

Goodwin, 2021 WL 1978795, at *4–5. Strike 3 cannot prosecute its claims without knowing the

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identity of the alleged infringer, and therefore the information it seeks to obtain from Verizon

Fios clearly “bears directly on,” and is relevant to, Strike 3’s claim. Goodwin, 2021 WL

1978795, at *4, see generally Strike 3 Holdings, LLC v. Doe, 2019 WL 1865919, at *2 (N.D.

Cal. Apr. 25, 2019) (denying motion to quash subpoena served to identify a potential infringer

and stating “Plaintiff needs the subscriber information to conduct a good faith investigation”).

Although the subscriber may not have been the actual infringer, at this stage Strike 3 need only

demonstrate that learning the subscriber’s identity may help it identify the infringer. See Strike 3

Holdings, 964 F.3d at 1210; see also Arista Records, 551 F. Supp. 2d at 8 (refusing to consider

arguments that the subscriber associated with the IP address may not be the actual infringer as

part of review of motion to quash a subpoena served during expedited discovery).

Further, Strike 3’s factual allegations support a good faith belief that the infringer will be

subject to the Court’s personal jurisdiction. Absent such a showing, “there is little reason to

believe that the information sought will be ‘relevant to the subject matter involved in the

action,’” because “[t]he identity of prospective defendants who cannot properly be sued in this

district can be of little use in a lawsuit brought in this district.” 3 AF Holdings, 752 F.3d at 995

(citing Fed. R. Civ. P. 26(b)(1)); see also Strike 3 Holdings, 964 F.3d at 166–67. Strike 3’s

claims arise under the Copyright Act, 17 U.S.C. § 101 et seq., which “does not provide for the

exercise of personal jurisdiction over alleged infringers on any basis.” Malibu Media LLC v.

Doe, 177 F. Supp. 3d 554, 556 (D.D.C. 2016) (citing Exquisite Multimedia, Inc. v. Does 1-336,

No. 11-1976 (RWR/JMF), 2012 WL 177885, at *2). Accordingly, this Court’s personal

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Courts applying the good cause standard described this as a threshold issue that
plaintiffs must prove before the Court determined whether to allow expedited discovery. See AF
Holdings, 752 F.3d at 996. As that showing was tied to establishing the relevance of the
proposed discovery, the Court addresses personal jurisdiction as part of the Rule 26(b) analysis,
instead of as a separate threshold showing.

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jurisdiction over Defendant is dependent “on the reach of District of Columbia law.” Id.; Fed. R.

Civ. P. 4(k)(1)(A). District of Columbia law confers personal jurisdiction “over a person

domiciled in, organized under the laws of, or maintaining his or its principal place of business in,

the District of Columbia as to any claim for relief.” D.C. Code Ann. § 13-422. The District of

Columbia long-arm statute provides, in relevant part, that a D.C. court may exercise personal

jurisdiction “over a person, who acts directly or by an agent, as to a claim for relief arising from

the person’s — (3) causing tortious injury in the District of Columbia by an act or omission in

the District of Columbia.” D.C. Code Ann. § 13-423(a)(3); see also Nu Image, Inc. v. Does 1-

23,322, 799 F. Supp. 2d 34, 38 n.3 (D.D.C. 2011) (noting that it is “well settled in this

jurisdiction that a claim for copyright infringement sounds in tort”). Applying those principles to

a copyright infringement case such as this, “the only conceivable way that personal jurisdiction

might properly be exercised” over Defendant is if Defendant is a “resident[] of the District of

Columbia or at least downloaded the copyrighted work in the District.” AF Holdings, 752 F.3d

at 996; see also Malibu Media, 177 F. Supp. 3d at 557.

Using geolocation technology, Strike 3 has traced the IP address associated with the fifty-

seven acts of illegal downloading to the District of Columbia, thereby establishing a good faith

basis to believe that the subscriber associated with the IP address is subject to this Court’s

personal jurisdiction. See Compl. ¶¶ 8–9; Compl. Ex. A. “[G]eolocation services” provide a

reliable means to “estimate the location of Internet users based on their IP addresses.” AF

Holdings, 752 F.3d at 996; see also Nu Image, 799 F. Supp. 2d at 40 (“Plaintiff can establish

such a good faith basis for residence or personal jurisdiction by utilizing geolocation services

that are generally available to the public to derive the approximate location of the IP addresses

identified for each putative defendant.”). Consequently, the geolocation data that Strike 3 has

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gathered supports a reasonable inference “that someone with prolonged, continuous access to

this IP address was responsible for the alleged infringement.” Strike 3 Holdings, 964 F.3d at

1211. As the IP address is in D.C., it is reasonable to infer that the Defendant may reside in D.C.

and be subject to this Court’s jurisdiction based on his or her residence. Therefore, jurisdictional

discovery to identify the Defendant is relevant.

B. Proportionality

The requested discovery is also proportional. Strike 3 seeks to issue a narrow subpoena

directing Verizon Fios to provide the name and address of the individual or entity that was

associated with the IP address during the relevant time. Given the importance of the issues at

stake, Strike 3’s inability to pursue its claims without identifying the infringer, and Strike 3’s

inability to obtain this information without third party assistance, this minimally burdensome

subpoena is proportional to the case.

To determine the “importance of the issues,” in the proportionality analysis, courts

examine “the significance of the substantive issues, as measured in philosophic, social, or

institutional terms.” Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., 322 F.R.D. 1, 7

(D.D.C. 2017) (citing Arrow Enter. Computing Solutions, Inc. v. BlueAlly, LLC, No. 5:15-CV-

37-FL, 2017 WL 876266, at *4 (E.D.N.C. Mar. 3, 2017)) (internal citation and quotation marks

omitted). “‘[C]ases in public policy spheres, such as employment practices, free speech, and

other matters,’ which often ‘seek[] to vindicate vitally important personal and public values’ and

may have importance far beyond the monetary amount involved[]’” typically are considered to

implicate “important” issues. Id. (citing Fed. R. Civ. P. 26 advisory committee’s note). Strike

3’s claim implicates important property rights protected by the Copyright Act. The Constitution

itself provides the authority to copyright in order “to stimulate artistic creativity for the general

public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975); see generally

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Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994) (discussing the societal value and competing

interests inherent in copyright protection). A copyright holder is entitled to protect its interests in

copyrighted work, regardless of its content. See Strike 3 Holdings, 964 F.3d at 1210. Identifying

the infringer, so that the civil case may proceed, is essential for Strike 3 to vindicate its rights and

thwart the large-scale piracy of its films. Consequently, this factor weighs in favor of permitting

expedited discovery.

The parties’ relative access to the information also weighs in favor of permitting

expedited discovery. This factor focuses on “information asymmetry, a circumstance in which

one party has very little discoverable information while the other party has vast amounts of

discoverable information.” Oxbow, 322 F.R.D. at 8. Here the asymmetry is extreme—Strike 3

has no way to independently access the subscriber information for the IP address, whereas

Verizon Fios should be able to readily retrieve the information from its records. See Paige Decl.

¶ 22 (explaining that tracking the IP address connected with the infringement is the only lead

Strike 3 has towards identifying the defendant); BMG Rights Mgmt. (US) LLC v. Cox Commc’ns,

Inc., 881 F.2d 293, 299 (4th Cir. 2018) (noting “only the ISP can match the IP address to the

subscriber’s identity”).

When assessing the discovery’s importance in resolving the issues, courts evaluate

“whether ‘[t]he issues at stake are at the very heart of the litigation.” Oxbow, 322 F.R.D. at 8.

Strike 3 cannot prosecute its case without identifying the John Doe Defendant, but has no way to

access the information on its own. Thus Strike 3 has a particularly strong need for expedited

discovery.

The remaining factors also indicate that Strike 3’s requested discovery is proportional. It

is difficult to ascertain the amount in controversy at this stage, but Strike 3 seeks statutory

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damages for each infringed work, plus attorneys’ fees and costs. See Compl. at 9. In a similar

case, Strike 3 sought the statutory minimum of $750 per infringed work. See Strike 3 Holdings

LLC v. Doe, No. 18-cv-1173-TSH, 2019 WL 1277561, *2 (N.D. Cal. Mar. 20, 2019). If the

same measure of damages is sought here, Strike 3 could recover up to $42,750 ($750 x 57), plus

attorneys’ fees and costs. The discovery appears to place a minimal burden and expense upon

Verizon Fios, which need only search its records (presumably maintained electronically) to

obtain the subscriber information.4

In sum, the proportionality factors, when balanced and applied to the facts Strike 3 has

alleged, counsel in favor of permitting Strike 3 to conduct expedited discovery to attempt to

identify the subscriber of the IP address. Therefore, the proposed discovery satisfies Rule

26(b)(1).

Although Strike 3 Has Not Demonstrated That a Protective Order Is Warranted,
Temporary Restrictions on Disclosure Are Appropriate to Protect the Subscriber’s
Right to Seek Confidentiality

Strike 3 “encourages” the Court to issue a protective order establishing procedural

safeguards, such as allowing Defendant to proceed anonymously. See Pl.’s Mem. at 9. Courts in

this District have issued protective orders in cases very similar to this one. See Strike 3

Holdings, LLC v. Doe, No. 17-cv-2347 (TJK), 2018 WL 385418, at *2 (D.D.C. 2018). There

may be grounds to shield the identity of the Defendant from public disclosure. Strike 3 seeks

discovery related to a potentially sensitive topic—the alleged illegal downloading and

distribution of adult films. And while Strike 3 was able to identify the IP address associated with

4
Because proportionality is being analyzed to determine whether to allow expedited
discovery, the Court’s analysis is necessarily limited to the information presented by Strike 3.
Verizon Fios may produce evidence in a motion to quash that would fundamentally alter the
proportionality analysis, and this opinion should not be read as foreclosing that possibility.

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those downloads and trace it to the District of Columbia, it is theoretically possible that the

targeted subscriber is not the infringer. See Media Prods., Inc. v. Does 1-26, No. 12-cv-3719

(HB), 2012 WL 2190613, at *1 (S.D.N.Y. June 12, 2012) (discussing risks that the infringer

could be “a third party who had access to the internet connection, such as a son or daughter,

houseguest, neighbor, or customer of a business offering an internet connection,” and discussing

the risks that defendants might be falsely identified). However, it is equally and arguably more

plausible that the Defendant is the infringer, and defendants charged with salacious conduct are

not automatically permitted to remain anonymous. Indeed, the default presumption in federal

courts is that judicial records and proceedings will be publicly accessible, and parties may only

proceed anonymously if the court determines that the party’s privacy interests “outweigh the

public’s presumptive and substantial interest in knowing the details of judicial litigation.” John

Doe Co. v. Consumer Financial Protection Bureau, 321 F.R.D. 31, 33 (D.D.C. 2017). Given the

limited information available at this stage of the litigation, it is premature to enter a protective

order allowing the Defendant, once identified, to remain anonymous. Accordingly, the Court

denies without prejudice Strike 3’s request for a protective order.

Once Defendant receives notice of the subpoena and this litigation, Defendant may well

assert an interest in anonymity that would warrant the issuance of a protective order. Indeed,

Defendant is best situated to present such a request to the Court. To avoid prejudicing

Defendant's ability to seek such an order in the future, the Court will restrict the disclosure of the

Defendant's name and address for a limited period as explained below. See infra Part III.

III. Procedure Governing Expedited Discovery

For the foregoing reasons, the Court will permit Strike 3 to serve a Rule 45 subpoena

upon Verizon Fios, in order to obtain the identity of the individual associated with IP address

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100.15.183.198. The subpoena may seek identifying information including the individual's name

and current and permanent address. Strike 3 shall provide the ISP with a copy of this

Memorandum Opinion and the accompanying Order with its subpoena. Any information

disclosed to Strike 3 in response to a Rule 45 subpoena may be used solely for the purpose of

protecting Strike 3’s rights as set forth in the Complaint and shall not be disclosed publicly,

except as authorized below.

If and when the ISP is served with a subpoena, the ISP shall give written notice, which

may include e-mail notice, to the subscriber in question at least fourteen (14) days prior to

releasing the subscriber's identifying information to Strike 3. If the ISP and/or Defendant would

like to move to quash the subpoena, the party must do so before the return date of the subpoena,

which shall be no earlier than forty-five (45) days from the date of service. The ISP shall

preserve any subpoenaed information, pending the resolution of any timely filed motion to

quash.

If the Defendant wishes to proceed anonymously in this litigation, Defendant shall make

that request through a motion for protective order. Any such motion shall be filed within thirty

(30) days of when Defendant receives written notice of the subpoena from the ISP. The motion

requesting anonymity may be filed under seal if it contains information identifying the

Defendant. If the motion is filed under seal, or is not filed electronically, Defendant shall serve a

copy upon counsel for Strike 3.

To preserve Defendant's ability to seek a protective order, Strike 3 shall refrain from

identifying Defendant's name on the public docket for a period of thirty (30) days after receiving

the subscriber's identifying information from the ISP. On or before August 30, 2021, Strike 3

shall file a status report with the Court briefly outlining its progress, including providing an

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expected completion date of the discovery allowed by the accompanying Order and addressing

whether Strike 3 has received any formal or informal requests for anonymity from Defendant.

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS Plaintiff's Motion for Leave to

Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference, ECF No. 3, but DENIES

WITHOUT PREJUDICE Plaintiff’s motion for a protective order. A separate Order will

accompany this Memorandum Opinion.

Date: July 15, 2021 __________________________________
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE

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