United States District Court, D. Minnesota
BOWBEER, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
Relevant Legal Standards and Case Authority
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.
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.
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).
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, ...