Summary
In this memorandum opinion and order, the United States District Court for the Eastern District of Virginia granted Plaintiff Strike 3 Holdings, LLC’s ex parte motion for leave to serve a third-party Rule 45 subpoena on Verizon Fios prior to a Rule 26(f) conference. The court found good cause to allow limited pre-conference discovery solely to identify the subscriber associated with a specific IP address alleged to have infringed Plaintiff’s copyrighted works via BitTorrent. Applying a five-factor test, the magistrate judge concluded that the request was specific, necessary for service, and did not violate the defendant’s expectation of privacy. The order permits the ISP to disclose the subscriber's name and address upon receipt of a copy of the court order.
Topics
Practice areas
Questions Presented
- Whether good cause exists to allow a pre‑Rule 26(f) third‑party subpoena to discover the identity of an IP address subscriber.
Holdings
- The Court finds that good cause exists and grants Plaintiff's motion to serve a Rule 45 subpoena on Verizon Fios to obtain the subscriber's name and address.
Key quotations
“The “well‑established” test for determining good cause consists of five factors: “(1) a concrete showing of a prima facie claim of actionable harm; (2) specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) a central need for the subpoenaed information; and (5) the party’s expectation of privacy.””
Factual background
Plaintiff owns adult motion pictures and, using its VXN Scan system, identified an IP address that downloaded and distributed forty of its copyrighted movies. The only information linking the activity to a person is the IP address, and Plaintiff seeks a subpoena to the ISP to obtain the subscriber's name and address.
Procedural history
Plaintiff filed a motion seeking leave to serve a Rule 45 subpoena on the defendant's ISP before the Rule 26(f) conference to discover the subscriber's identity.