United States District Court, D. Delaware
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
Wilmington this 25th day of April, 2018:
before the Court are Plaintiff Strike 3 Holdings, LLC's
("Strike 3" or "Plaintiff) ex parte motions
for leave to serve third party subpoenas prior to a Rule
26(f) conference on internet service providers
("ISPs"), seeking discovery to obtain the name and
residential address of each Defendant John Doe ("Doe
Defendants") identified only by an internet protocol
("IP") address in ten copyright infringement
actions arising from the downloading of online adult
entertainment content. (See e.g., C.A. No. 18-431
-LPS D.I. 4) For the reasons stated below, in each case
the Court will grant the motion, subject to a protective
order outlined below.
According to the complaint, Plaintiff is an adult
entertainment company that owns the copyrights to popular and
award-winning adult motion pictures distributed through the
Blacked, Blacked Raw, Tushy, and Vixen adult
websites and DVDs. (D.I. 1, Â¶Â¶ 2-3, 13-15) The popularity of
these movies, the complaint alleges, has led some internet
users to commit online piracy using a computer file-sharing
program called BitTorrent. (See Id. Â¶Â¶ 16-22)
Plaintiff alleges that Doe Defendants committed copyright
infringement by illegally downloading Plaintiffs motion
pictures as well as distributing them to others over an
extended time using BitTorrent. (See Id. Â¶Â¶4-5, 23)
Although Doe Defendants' online activity is anonymous,
Plaintiff hired independent investigators to obtain and
confirm the specific IP address linked to the pirated
content, which could help identify Doe Defendants.
(See D.I. 5 at 1, Ex. B-D) Plaintiff alleges that
Doe Defendants' ISPs are the only parties that can
identify Doe Defendants' name and address through his or
her assigned IP address. (See D.I. 5 at 1, Ex. C;
D.I. 1 Â¶ 5)
"A party may not seek 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). Courts in this
district have applied a "good cause" standard in
cases like these, "where expedited discovery is sought
in order to identify unknown or anonymous John Doe
defendants." Reybold Grp. of Companies, Inc. v. Does
1-20, 323 F.R.D. 205, 208 (D. Del. 2017); see also
Vision Films, Inc. v. John Does 1-24, 2013 WL 1163988,
at *3 (D. Del. Mar. 20, 2013). To determine whether good
cause exists, the Court considers many factors, including:
(1) whether Plaintiff has established a. prima facie
showing of copyright infringement; (2) whether Plaintiff
"has no other way to identify the alleged wrongdoers,
aside from obtaining the discovery at issue;" and (3)
whether "expedited discovery is necessary because
evidence identifying the defendants may be otherwise
destroyed (e.g., as a result of routine deletion by third
party ISPs)." Reybold, 323 F.R.D. at 208;
see also Vision Films, 2013 WL 1163988 at *3.
Plaintiff has shown good cause exists to serve a third-party
subpoena to the respective ISPs identified in the complaint,
see D.I. 1 Ex. A, for each Doe Defendant. Plaintiff
has established a. prima facie showing of alleged
copyright infringement by submitting evidence - which the
Court accepts as true for purposes of the pending motions -
that shows the Doe Defendants copied Plaintiffs copyrighted
work. (See D.I. 1 Â¶Â¶ 34-39; D.I. 5 Exs. A-D)
Plaintiff has also shown that Plaintiff cannot obtain Doe
Defendants" identities in the absence of a subpoena to
the corresponding ISPs. (See D.I. 5 Ex. C ¶10)
The Court is further persuaded by Plaintiffs assertion that
expedited discovery is necessary because "[each Doe]
Defendant's ISP only maintains the internal logs of the
requested information for a brief period of time."
(Id. at 2, 8-9)
when these types of motions are granted, courts "still
assess whether other protections should be imposed to protect
defendants from misuse of their personal information."
Reybold, 323 F.R.D. at 209; see also Vision
Films, 2013 WL 1163988, at *4-5. This is "because
the ISP subscribers may be innocent third parties, the
subject matter of the suit deals with sensitive and personal
matters, and the jurisdictional and procedural complications
might otherwise dissuade innocent parties from contesting the
allegations." Digital Sin, Inc. v. Does 1-5698,
2011 WL 5362068, at *4 (N.D. Cal. Nov. 4, 2011). The Court is
"concerned about the possibility that many of the names
and addresses produced in response to Plaintiffs discovery
request will not in fact be those of the individuals who
downloaded" the alleged copyrighted content. Digital
Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y.
2012) (finding this "risk is not purely speculative,
" as "the true offender" may be family member
or friend, or neighbor who shares IP addresses or wireless
networks). "This risk of false positives gives rise to
the potential for coercing unjust settlements from innocent
defendants such as individuals who want to avoid the
embarrassment of having their names publicly associated with
allegations of illegally downloading" on line adult
content. Id. (internal quotation marks omitted).
Given these concerns, the Court finds it appropriate to enter
a protective order.
the Court ISSUES a protective order to the
limited extent that any information regarding any Doe
Defendant released to Plaintiff by an ISP shall be treated as
confidential until further order of the Court. Specifically,
Plaintiff shall not publicly disclose such information until
such Doe Defendant has the opportunity to file a motion with
this Court to be allowed to proceed in this litigation
anonymously and, if such motion is filed, until after that
motion is resolved by the Court. If a Doe Defendant includes
identifying information within his or her request to proceed
anonymously, the Court finds good cause to order the papers
filed under seal until the Court has the opportunity to rule
on the request.
reasons stated above, IT IS HEREBY ORDERED
that the motion for leave to serve a third-party subpoena is
GRANTED as follows: C.A. No. 18-431-LPS D.I.
4, C.A. No. 18-432-LPS D.I. 4, C.A. No. 18-433-LPS D.I. 4,
C.A. No. 18-434-LPS D.I. 4, C.A. No. 18-435-LPS D.I. 4, C.A.
No. 18-436-LPS D.I. 4, C.A. No. 18-437-LPS D.I. 4, C.A. No.
18-438-LPS D.I. 4, C.A. No. 18-439-LPS D.I. 4, and C.A. No.
18-440-LPS D.I. 4.
IS FURTHER ORDERED that Plaintiff may serve a
subpoena pursuant to Fed.R.Civ.P. 45 on the ISPs listed in
Exhibits A to the complaints that seeks only the true name
and address of Doe Defendants. Plaintiff shall not subpoena
additional information. The subpoena shall have a copy of
this order attached.
IS FURTHER ORDERED that the ISP shall have 60 days
from the date of service upon it to serve the Doe Defendant
with a copy of the subpoena and a copy of this order. The ISP
may serve each Doe Defendant using any reasonable means,
including written notice sent to his or her last known
address, transmitted either by first-class mail or via
IS FURTHER ORDERED that each Doe Defendant shall
have 90 days from the date of service upon him or her to file
any motions contesting the subpoena (including a motion to
quash or modify the subpoena) with the court that issued the
subpoena, as well as any request to litigate the subpoena
anonymously. The ISPs shall not turn over Doe Defendants'
identifying information to Plaintiff before the expiration of
the 90-day period. If that 90-day period lapses without Doe
Defendant contesting the subpoena, the ISP shall have 10 days
to produce the information responsive to the subpoena to
Plaintiff. Additionally, if a Doe Defendant or an ISP files a
motion to quash the subpoena, the ISPs shall not turn over
any information to Plaintiff until the issues have been
addressed and the Court issues another order instructing the
ISPs to turn over the requested information.
IS FURTHER ORDERED that the subpoenaed entity shall
preserve any subpoenaed information pending the resolution of
any timely-filed motion contesting the subpoena (including a
motion to quash or modify the subpoena).
IS FURTHER ORDERED that an ISP that receives a
subpoena pursuant to this order shall confer with Plaintiff
and shall not assess any charge in advance of providing the
information requested in the subpoena. An ISP that receives a
subpoena and elects to charge for the costs ...