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LLC v. Doe

United States District Court, D. Minnesota

May 18, 2018

Strike 3 Holdings, LLC, Plaintiff,
v.
John Doe subscriber assigned IP address 24.118.71.191, Defendant.

          ORDER

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff Strike 3 Holdings, LLC's ex parte Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [Doc. No. 5]. The motion is granted, as set forth below.

         I. Background

         On March 21, 2018, Strike 3 Holdings, LLC (“Strike 3”) filed eight cases against John Doe defendants in the District of Minnesota: Strike 3 Holdings, LLC v. Doe, No. 18-cv-00768 (DSD/FLN); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00771 (DWF/HB); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00773 (JRT/DTS); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00774 (DWF/DTS); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00775 (PJS/SER); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00777 (JRT/BRT); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00778 (PJS/HB); and Strike 3 Holdings, LLC v. Doe, No. 18-cv-00779 (WMW/SER). Strike 3 alleges similar claims of copyright infringement in each case, and has also filed in each case an ex parte motion requesting permission to serve a third-party subpoena before the Rule 26(f) pretrial scheduling conference.

         In the case at hand, Strike 3 alleges that the John Doe Defendant (“Defendant”) committed copyright infringement by unlawfully downloading and distributing Strike 3's copyrighted movies. (Compl. ¶¶ 1, 4 [Doc. No. 1].) Strike 3 distributes its copyrighted movies through adult websites and DVDs. (Compl. ¶ 3.) According to Strike 3, Defendant used a BitTorrent file distribution protocol to download the movies and illegally distribute them over the internet. (Compl. ¶ 4.) An investigator employed by Strike 3, IPP International U.G., allegedly was able to establish a direct TCP/IP connection with Defendant's Internet Protocol (“IP”) address while Defendant was using the BitTorrent file distribution network, and downloaded one or more copyrighted media files. (Compl. ¶¶ 24-25.) Strike 3 has not been able to identify Defendant other than by his or her IP address, but alleges that Defendant's Internet Service Provider (“ISP”) Comcast Cable Communications, LLC (“Comcast”) would be able to identify the alleged infringer by name and address using the IP address. (Compl. ¶ 5.)

         Strike 3 filed its motion for leave to serve a third-party subpoena on April 19, 2018. Despite hiring an investigator and forensic expert, Strike 3 contends that it has been able to identify Defendant only by his or her IP address, and that only Comcast can correlate the IP address with Defendant's identity. (Pl.'s Mem. Supp. Mot. Leave Serve Subpoena at 1-2 [Doc. No. 7].) Strike 3 argues that it needs to learn Defendant's name and address so that it can investigate Defendant's role in the alleged copyright infringement and serve the summons and complaint on Defendant. (Pl.'s Mem. at 2.) To accomplish this, Strike 3 seeks leave to serve a Rule 45 subpoena on Comcast before the Rule 26(f) conference is held in this matter.

         II. Discussion

         A. Relevant Legal Standards and Case Authority

         Rule 26(d) prohibits a party from “seek[ing] discovery from any source before the parties have conferred as required by Rule 26(f), except …when authorized by these rules, by stipulation, or by court order.” Fed.R.Civ.P. 26(d)(1). This rule creates a Catch-22 for Strike 3: It is not able to confer with Defendant as required by Rule 26(f) because it cannot identify Defendant, but it cannot identify Defendant without discovery from Comcast.

         Though the Eighth Circuit Court of Appeals has not adopted a standard to govern when a court should permit expedited discovery, district courts in the Eighth Circuit have generally applied a “good cause” standard in determining whether early discovery is appropriate. E.g., Planned Parenthood Ark. & E. Okla. v. Gillespie, No. 4:15-cv-566-KGB, 2018 WL 1904845, at *1 (E.D. Ark. Mar. 20, 2018); Nilfisk, Inc. v. Liss, No. 17-cv-1902 (WMW/FLN), 2017 WL 7370059, at *7 (D. Minn. June 15, 2017); Loeffler v. City of Anoka, No. 13-cv-2060 (MJD/TNL), 2015 WL 12977338, at *1 (D. Minn. Dec. 16, 2015); Oglala Sioux Tribe v. Van Hunnik, 298 F.R.D. 453, 455 (D.S.D. 2014); Wachovia Sec., L.L.C. v. Stanton, 571 F.Supp.2d 1014, 1050 (N.D. Iowa 2008); Monsanto Co. v. Woods, 250 F.R.D. 411, 413 (E.D. Mo. 2008). Before the Court engages in a “good cause” analysis here, however, it will be informative to set the stage with two decisions by the Eighth Circuit Court of Appeals, which, though not directly on point, provide at least persuasive authority on the issue before the Court.

         In Killer Joe Nevada, LLC v. Does 1-20, 807 F.3d 908 (8th Cir. 2015), a copyright owner sued several John Doe defendants, identified in the complaint only by their IP addresses, for downloading copyrighted films through a BitTorrent computer program. Id. at 910-11. The plaintiff subpoenaed the respective ISPs to identify the subscriber at each IP address. Id. at 911. After a subscriber was identified, the plaintiff amended the complaint to name the subscriber as the defendant. Id. After one of the identified defendants denied downloading the film, the plaintiff moved to voluntarily dismiss her, but the defendant opposed the dismissal unless she was awarded attorney's fees. Id. In addressing whether dismissal was proper, the Eighth Circuit considered whether it was “unreasonable for a Copyright Act plaintiff to sue the subscriber without first investigating whether the subscriber was responsible for the infringement.” Id. at 912. The court concluded it was not unreasonable. A plaintiff in a copyright infringement action “may properly sue ‘John Doe' to ascertain the ISP subscriber.” Id. (citing In re Charter Commc'ns Inc., Subpoena Enf't Matter, 393 F.3d 771, 774, 775 n.3 (8th Cir. 2005) (emphasis in Killer Joe Nevada). The court quoted the following explanation from Charter Communications: “Only the ISP . . . can link a particular IP address with an individual's name and physical address”; plaintiffs can seek “third-party discovery of the identity of the otherwise anonymous ‘John Doe' defendant” from the ISP. Killer Joe Nevada, 807 F.3d at 912 (quoting Charter Communications, 393 F.3d at 774, 775 n.3).

         In the Charter Communications case, the Eighth Circuit explicitly endorsed, albeit in a footnote, the procedure that Strike 3 seeks to employ here, explaining:

This case has wide-reaching ramifications, because as a practical matter, copyright owners cannot deter unlawful peer-to-peer file transfers unless they can learn the identities of persons engaged in that activity. However, [copyright owners] can also employ alternative avenues to seek this information, such as “John Doe” lawsuits. In such lawsuits, many of which are now pending in district courts across the country, [copyright owners] can file a John Doe suit, ...

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