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LLC v. Doe

United States District Court, D. Minnesota

May 25, 2018

Strike 3 Holdings, LLC, Plaintiff,
v.
John Doe, subscriber assigned IP address 24.118.140.122, Defendant.

          ORDER

          STEVEN E. RAU, UNITED STATES MAGISTRATE JUDGE

         The above-captioned case comes before the undersigned on Plaintiff Strike 3 Holdings, LLC's (“Strike 3”) Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [Doc. No. 4]. This matter has been referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court grants the motion.

         I. BACKGROUND

         On March 21, 2018, Strike 3 filed eight cases against John Doe defendants in the District of Minnesota: Strike 3 Holdings, LLC v. Doe, No. 18-cv-768 (DSD/FLN); Strike 3 Holdings, LLC v. Doe, No. 18-cv-771 (DWF/HB); Strike 3 Holdings, LLC v. Doe, No. 18-cv-773 (JRT/DTS); Strike 3 Holdings, LLC v. Doe, No. 18-cv-774 (DWF/DTS); Strike 3 Holdings, LLC v. Doe, No. 18-cv-775 (PJS/SER); Strike 3 Holdings, LLC v. Doe, No. 18-cv-777 (JRT/BRT); Strike 3 Holdings, LLC v. Doe, No. 18-cv-778 (PJS/HB); and Strike 3 Holdings, LLC v. Doe, No. 18-cv-779 (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.

         Strike 3 alleges that the John Doe defendant (“Defendant”) committed copyright infringement by unlawfully downloading and distributing Strike 3's copyrighted movies. (Compl.) [Doc. No. 1 ¶¶ 1, 4]. Strike 3 distributes its copyrighted movies through adult websites and DVDs. (Id. ¶ 3). According to Strike 3, Defendant used a BitTorrent file distribution protocol to download the movies and illegally distribute them over the internet. (Id. ¶ 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. (Id. ¶¶ 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. (Id. ¶ 5).

         Strike 3 filed its motion for leave to serve a third-party subpoena on April 19, 2018. Despite utilizing its investigator and hiring a 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 match the IP address with Defendant's identity. (Mem. of Law in Supp. of Mot.) [Doc. No. 6 at 1-2]. 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. (Id. 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.

         In this District, two magistrate judges-the Honorable David T. Schultz and the Honorable Franklin L. Noel-have denied Strike 3's motions for early discovery, concluding that the defendants' privacy interests outweigh Strike 3's property interests. Order Dated Apr. 30, 2018, Strike 3 Holdings, No. 18-cv-773 (JRT/DTS) [Doc. No. 14] (Schultz, Mag. J.), appeal docketed (May 11, 2018) [Doc. No. 15]; Order Dated Apr. 30, 2018, Strike 3 Holdings, No. 18-cv-774 (DWF/DTS) [Doc. No. 13] (Schultz, Mag. J.), appeal docketed (May 11, 2018) [Doc. No. 14]; Strike 3 Holdings LLC, No. 18-cv-768 (DSD/FLN), 2018 WL 1924455 (D. Minn. Apr. 24, 2018) (Noel, Mag. J.), appeal docketed (May 8, 2018) [Doc. No. 15]. In contrast, two different magistrate judges-the Honorable Hildy Bowbeer and the Honorable Becky R. Thorson-have granted the motion and established procedural safeguards to protect defendants' identities. Strike 3 Holdings, No. 18-cv-771 (DWF/HB), 2018 WL 2278110 (D. Minn. May 18, 2018) (Bowbeer, Mag. J.); Strike 3 Holdings, No. 18-cv-778 (PJS/HB), 2018 WL 2278111 (D. Minn. May 18, 2018) (Bowbeer, Mag. J.); Strike 3 Holdings, No. 18-cv-777 (JRT/BRT), 2018 WL 2078707 (D. Minn. May 4, 2018) (Thorson, Mag. J.).

         II. DISCUSSION

         Before turning to the legal standard, the Court notes that this case follows the procedure the Eighth Circuit endorsed in a footnote in 2005. See In re Charter Commc'ns, Inc. Subpoena Enf't Matter, 393 F.3d 771, 775 n.3 (2005). Specifically, the court noted that

copyright owners cannot deter unlawful peer-to-peer file transfers unless they can learn the identities of persons engaged in that activity. However, organizations . . . 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, organizations . . . can file a John Doe suit, along with a motion for third-party discovery of the identity of the otherwise anonymous “John Doe” defendant.

Id. In circumstances such as this case, “[o]nly the ISP . . . can link a particular IP address with an individual's name and physical address.” Id. at 774.

         Ten years later, the Eighth Circuit found that it was reasonable for a plaintiff suing under the Digital Millennium Copyright Act (“DMCA”) to sue an ISP's subscriber without first investigating whether the subscriber was responsible for the infringement. Killer Joe Nevada, LLC v. Does 1-20, 807 F.3d 908, 912 (8th Cir. 2015).

         With this background established, the Court turns to the precise legal issue here: whether Strike 3 is entitled to early discovery to determine the identity of the subscriber linked to the allegedly infringing IP address.

         A. ...


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