STRIKE 3 HOLDINGS, LLC

v.

DOE

Before the Court is the Plaintiff's Motion for Leave to Serve a Third-Party Subpoena Prior to Rule 26(f) Conference. (Doc. 8). For the reasons discussed below, the Plaintiff's motion is granted.

I.

Plaintiff Strike³ Holdings, LLC (Strike³) initiated this action in December 2023, alleging copyright infringement against an unnamed defendant (Doe Defendant). (Doc. 1). According to Strike³, the Doe Defendant unlawfully reproduced and distributed Strike³'s copyrighted works through the use of the internet and a peer-to-peer file sharing protocol known as BitTorrent. Id. As a result of its investigation, Strike³ has identified the Doe Defendant's Internet Protocol (IP)

address (i.e., 73.255.225.8) as the one from which the allegedly infringing conduct occurred. Id.

By way of the instant motion, Strike³ now seeks leave to engage in limited, expedited discovery with the Doe Defendant's Internet Service Provider (ISP), Comcast Cable, to learn the Doe Defendant's true identity. (Doc. 8).

II.

Rule 26(d) of the Federal Rules of Civil Procedure generally precludes a party from seeking discovery from any source before the parties participate in their required Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1). This rule admits of an exception, however, where a party obtains court approval in advance. Id. (stating that a party may seek discovery prior to the Rule 26(f) conference “when authorized by ... court order").

A party seeking leave to conduct such expedited discovery must establish that there is good cause for doing so. Richardson v. Virtuoso Sourcing Grp., LLC, 2015 WL 12862517, at *1 (M.D. Fla. Oct. 27, 2015); United States v. Gachette, 2014 WL 5518669, at *1 (M.D. Fla. Sept. 26, 2014). When a case involves infringement by means of the internet, “courts often evaluate good cause by considering factors such as the concreteness of the plaintiff's prima facie case of infringement; the specificity of the discovery request; the absence of alternative means to obtain the subpoenaed information; and the need for the subpoenaed information to advance the claim." Strike³ Holdings, LLC v. Doe, No. 3:19-cv-335-J-34JBT (Doc. 13 at 2) (M.D. Fla. Apr.³, 2019) (quoting Manny Film LLC v. Doe, 2015 WL 12850566, at *1 (M.D. Fla. May

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18, 2015)). Some courts also consider a defendant's expectation of privacy. See, e.g., Strike³ Holdings, LLC v. Doe, 2019 WL 340712, at *2 (S.D.N.Y. Jan. 24, 2019) (citing Arista Records, LLC v. Doe, 604 F. 3d 110, 119 (2d Cir. 2010)).

In the end, whether the moving party has demonstrated good cause is left to a court's broad discretion. Richardson, 2016 WL 7468804, at *1 (citing Crawford-El v. Britton, 523 U.S. 574, 598 (1998)); Tracfone Wireless, Inc. v. Holden Prop. Servs., LLC, 299 F.R.D. 692, 694 (S.D. Fla. 2014) (citing Johnson v. Bd. of Regents, 263 F. 3d 1234, 1269 (11th Cir. 2001)).

The Court finds that Strike³ has met its burden of establishing good cause here. As attested to by its Chief Technology Officer, Strike³ developed and employed an infringement detection system, known as VXN Scan, to identify IP addresses used to violate the company's copyright protections via BitTorrent. (Doc. 8-1). After reviewing the results of this scan, Strike³'s forensic investigator was able to determine that the Doe Defendant's IP address had uploaded a portion of one or more of Strike³'s copyrighted works. (Doc. 8-2). Strike³ also analyzed the data to confirm that the alleged infringing files detected in its investigation corresponded with those protected works. (Doc. 8-3).

In addition to this evidence, Strike³ has sufficiently tailored its subpoena by limiting it to the Doe Defendant's name and address. (Doc. 8-4). Moreover, although Strike³'s forensic investigation has led to the discovery of the Doe Defendant's IP address, the identity of the user of this IP address remains unknown. (Doc. 8-2). Strike³ submits that the sole mechanism for it to ascertain the true name and address of the

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Doe Defendant is through Comcast Cable. Id. Strike³ further submits that Comcast Cable will only maintain the requested information for a limited period of time and that, if this information is erased, Strike³ will not be able to pursue its infringement action, much less engage in a meaningful Rule 26(f) conference. (Doc. 8 at 3, 10–11).

Finally, with respect to the matter of privacy, a number of courts have observed that "ISP subscribers have a minimal expectation of privacy in the transmission or distribution of copyrighted material.” Strike³ Holdings, LLC v. Doe, 2019 WL 1620692, at *2 (S.D.N.Y. Apr. 16, 2019) (quoting Wiley & Sons, Inc. v. Doe Nos. 1–30, 284 F.R.D. 185, 191 (S.D.N.Y. Sept. 19, 2012) and citing Malibu Media, LLC v. John Does 1-11, 2013 WL 3732839, at *6 (S.D.N.Y. July 6, 2013)). While the Court recognizes that the ISP subscriber at a given IP address may not be the same individual who engaged in the infringing activity, SBO Pictures, Inc. v. Does¹–3036, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011), “[a]ny concern about identifying the wrong individual and subsequent undue embarrassment can be alleviated with the Court's procedural safeguards described below,” Strike³ Holdings, 2019 WL 1620692, at *2.

III.

In light of all of the above, it is hereby ORDERED: