`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`71.59.3.125,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.137.105.62,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`24.240.23.76,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.237.242.170,
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Civil Action No.
`1:23-cv-02096-SDG
`
`Civil Action No.
`1:23-cv-02098-SDG
`
`Civil Action No.
`1:23-cv-02099-SDG
`
`Civil Action No.
`1:23-cv-02100-SDG
`
`
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 2 of 10
`
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.137.234.124,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.184.211.143,
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Civil Action No.
`1:23-cv-02102-SDG
`
`Civil Action No.
`1:23-cv-02103-SDG
`
`
`OPINION & ORDER
`
`This matter is before the Court on Plaintiff Strike 3 Holdings, LLC’s
`
`(Strike 3) motions to serve subpoenas on multiple Defendants pursuant to Fed. R.
`
`Civ. P. 45 in the above-captioned cases [1:23-cv-02096-SDG, ECF 6; 1:23-cv-02098-
`
`SDG, ECF 6; 1:23-cv-02099-SDG, ECF 6; 1:23-cv-02100-SDG, ECF 6; 1:23-cv-02100-
`
`SDG, ECF 6; 1:23-cv-02103-SDG, ECF 6]. For the reasons that follow, the motions
`
`to serve subpoenas are GRANTED. The application for admission pro hac vice is
`
`DENIED as moot. See ECF 9.
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 3 of 10
`
`I.
`
`Background
`
`The facts underpinning these cases are essentially the same.1 Strike 3 owns
`
`a library of adult motion pictures, dozens of which the John Doe Defendants
`
`allegedly copied and reproduced, infringing on Strike 3’s copyrights.2 According
`
`to Strike 3, these motion pictures are “award-winning,” “critically acclaimed,”
`
`“high-end,” “artistic,” and “performer-inspiring” owing to their “Hollywood[-
`
`]style budget and quality.”3 Apparently, quality begets viewership: Strike 3’s
`
`subscription-based websites boast a subscriber base that is purportedly one of the
`
`highest of any adult content website.4 It also invites rampant infringement,
`
`evidenced by Strike 3’s content allegedly “appearing among the most infringed
`
`popular entertainment content on torrent websites.”5 Because of Defendants and
`
`
`1 For this reason, the court refers only to documents from the case filed first in
`time, 1:23-cv-02096-SDG.
`2 ECF 1, ¶¶ 1–4.
`Id. ¶ 3.
`3
`Id. ¶ 13.
`4
`Id. ¶ 16.
`5
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 4 of 10
`
`other alleged pirates, “Strike 3’s motion pictures are among the most pirated
`
`content in the world.”6
`
`Strike 3 maintains that Defendants “not only engage in illegal downloading,
`
`but are also large[-]scale unauthorized distributors of Strike 3’s content.”7 They are
`
`as yet unidentified because they cloaked their identities to evade detection. But,
`
`Strike 3 reasons, Defendants’ internet providers might be able to identify
`
`Defendants through their IP addresses, which Strike 3 uncovered using third-
`
`party geolocation technology and their own proprietary infringement detection
`
`system.8 For this reason, Strike 3 filed its many motions to serve Fed. R. Civ. P. 45
`
`subpoenas on Defendants.
`
`II. Discussion
`A.
`
`Fictitious Party Pleading
`
`Although fictitious party practice is not ordinarily allowed in federal court,
`
`Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010), the Eleventh Circuit Court
`
`of Appeals recognizes an exception when “the plaintiff’s description of the
`
`defendant is so specific as to be ‘at the very worst, surplusage.’” Id. (citation
`
`
`
`Id.
`6
`7 ECF 6-1, at 5 (citation omitted).
`8 ECF 1, ¶¶ 5, 9, 27–28.
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 5 of 10
`
`omitted). This exception has been applied by courts in this Circuit, as in other
`
`Circuits, to allow fictitious party pleading where discovery is necessary to
`
`determine a defendant’s true identity. See, e.g., Roe v. Doe, 2019 WL 13215281, at *1
`
`(N.D. Ga. Oct. 10, 2019) (finding fictitious party pleading was acceptable and
`
`authorizing limited discovery where defendants allegedly used false names and
`
`email accounts and could only be identified by those names and accounts).
`
`Strike 3 has sufficiently identified Defendants by their IP addresses—unique
`
`electronic signatures assigned to devices allegedly used by the infringers to pirate
`
`Strike 3’s property. See, e.g., Breaking Glass Pictures, LLC v. Doe, 2013 WL 8336085,
`
`at *5 (N.D. Ga. Apr. 12, 2013) (granting preliminary discovery where the plaintiff
`
`only knew the defendant’s IP address and sought leave to serve a subpoena based
`
`on this information to uncover the defendant’s identity). Without limited
`
`discovery, Strike 3 would be precluded from pursuing its claims and obtaining
`
`judicial relief related to the alleged infringement. Thus, in this case, the Court finds
`
`that fictitious party pleading is warranted and excepted from the general
`
`prohibition.
`
`B.
`
`Early Discovery Under Rule 26(d)(1)
`
`Under Rule 26(d)(1) of the Federal Rules of Civil Procedure, “[a] party may
`
`not seek discovery from any source before the parties have conferred as required
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 6 of 10
`
`by Rule 26(f),” unless authorized by court order. So, Strike 3’s request to issue Rule
`
`45 subpoenas must be evaluated through the lens of Rule 26(d)(1).
`
`The rule is silent as to the standard that applies when a court weighs
`
`whether to authorize discovery before the Rule 26(f) conference, but courts in this
`
`district have applied a good cause standard to answer the Rule 26(d)(1) question.
`
`See Breaking Glass Pictures, 2013 WL 8336085, at *5; Davis v. Collins, 2018 WL
`
`6163154, at *2 (N.D. Ga. Aug. 24, 2018); Thompson Ins. Enters., Inc. v. LIPCA, Inc.,
`
`2007 WL 9706825, at *6 (N.D. Ga. June 26, 2007). Whether good cause exists to grant
`
`preliminary discovery in cases involving fictitious party defendants depends on:
`
`“(1) whether the plaintiff has established a prima facie case; (2) whether the plaintiff
`
`has explained the steps already taken to identify the defendant; (3) whether the
`
`plaintiff has demonstrated that the requested discovery will likely uncover the
`
`defendant’s identity; and (4) whether the plaintiff’s discovery request is narrowly
`
`tailored.” Roe, 2019 WL 13215281, at *2 (cleaned up).
`
`1.
`
`Strike 3 Establishes a Prima Facie Case of Copyright
`Infringement.
`
`To make out a prima facie case of copyright infringement, Strike 3 must
`
`establish (1) that it is the owner of a valid copyright and (2) that Defendants copied
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 7 of 10
`
`protected elements of that work. Oravec v. Sunny Isles Luxury Ventures, L.C., 527
`
`F.3d 1218, 1223 (11th Cir. 2008). It does so.
`
`Taking these elements in reverse, Strike 3 establishes the second element of
`
`its copyright infringement claim because it (1) alleges that protected elements of
`
`its copyrighted works were in fact infringed by Defendants, and (2) offers evidence
`
`of its own digital monitoring and third-party investigation, which, together, traced
`
`the infringement of its copyrighted content to Defendants’ IP addresses.
`
`As to the first element, ownership of a copyright may be demonstrated
`
`through registration with the Copyright Office pursuant to 17 U.S.C. § 411. Donald
`
`Frederick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d 897, 903
`
`(11th Cir. 1986) (citing 17 U.S.C. § 410(c) and Nimmer on Copyright § 13.01[A], at 13-
`
`4) (The grant of copyright protection by the Copyright Office, evidenced by
`
`certificates of registration “constitute[s] prima facie evidence of the validity of the
`
`copyright and of the facts stated in the certificate,” including the requirement of
`
`originality.). Strike 3 has demonstrated just that by attaching to each of its motions
`
`for discovery declarations that establish it is the owner of registered copyrights
`
`associated with each digital file Defendants allegedly copied and distributed.
`
`While the burden shifts to Defendants at the motion-to-dismiss stage to disprove
`
`the presumption of valid copyright ownership to which Strike 3 is entitled on these
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 8 of 10
`
`facts, id., Strike 3’s allegations are sufficient to make out its prima facie case of
`
`copyright infringement for Rule 26(d)(1) purposes.
`
`2.
`
`Strike 3 Describes the Steps Taken to Identify Defendants.
`
`Strike 3 has alleged facts demonstrating it (1) identified Defendants’
`
`infringement and investigated it thoroughly using its own proprietary systems
`
`and third-party resources, and (2) diligently attempted to match Defendants’ IP
`
`addresses with Defendants before filing these motions. Strike 3 has not been able
`
`to identify any other way to uncover Defendants’ identities, but Defendants’
`
`internet providers are well-positioned to do what Strike 3 could not. Accordingly,
`
`the Court is satisfied that Strike 3 adequately describes the steps it has taken to
`
`identify Defendants—as well as how discovery will aid it to that end.
`
`3.
`
`Strike 3 Demonstrates that the Requested Discovery Will
`Likely Uncover Defendants’ Identities and Is Narrowly
`Tailored.
`
`Taking the third and fourth elements together, Strike 3 has shown that the
`
`requested discovery will likely uncover Defendants’ true identities and is
`
`narrowly tailored to meet this goal. As another district court commented when
`
`faced with a nearly identical inquiry, Strike 3 requests “only the name and
`
`permanent address of the IP address subscribers . . . requesting no more than
`
`would be required to identify the relevant individual.” Strike 3 Holdings, LLC v.
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 9 of 10
`
`Doe, 2020 WL 3567282, at *8 (D.N.J. June 30, 2020) (collecting cases). This narrow
`
`line of inquiry is reasonably calculated to obtain only Defendants’ names and
`
`addresses, which will allow Strike 3 to effect service of process on them.
`
`In light of the Court’s determinations about these elements and the others
`
`detailed above, the Court finds that there is good cause under Rule 26(d)(1) to
`
`grant Strike 3’s requests for early discovery in each of the above-captioned cases.
`
`III. Conclusion
`
`Strike 3’s motions to serve subpoenas on Defendants pursuant to Fed. R.
`
`Civ. P. 45 [1:23-cv-02096-SDG, ECF 6; 1:23-cv-02098-SDG, ECF 6; 1:23-cv-02099-
`
`SDG, ECF 6; 1:23-cv-02100-SDG, ECF 6; 1:23-cv-02100-SDG, ECF 6; 1:23-cv-02103-
`
`SDG, ECF 6] are GRANTED. Attorney Jeremy Thompson’s application for
`
`admission pro hac vice [1:23-cv-02096-SDG, ECF 8] is DENIED as moot. See ECF 9.
`
`The Court acknowledges Strike 3’s submission that it does not oppose a
`
`protective order; none is required at present. Any party seeking to maintain the
`
`confidentiality of any discovery may move to do so with the proper showing at
`
`any appropriate time during the pendency of these matters.
`
`Finally, these actions present almost identical complaints and discovery
`
`motions, and they appear substantially similar. Accordingly, within 5 days of
`
`entry of this Order, Strike 3 is ORDERED TO SHOW CAUSE why these actions
`
`
`
`
`
`
`
`Case 1:23-cv-02102-SDG Document 12 Filed 06/26/23 Page 10 of 10
`
`should not be consolidated pursuant to Fed. R. Civ. P. 42(a). See Young v. City of
`
`Augusta Through DeVaney, 59 F.3d 1160, 1168 (11th Cir. 1995) (citing Hendrix v.
`
`Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985)). Alternatively, Strike
`
`3 may indicate its consent to consolidation. The Clerk is DIRECTED to submit this
`
`Order to undersigned in 5 days.
`
`SO ORDERED this 26th day of June, 2023.
`
`
`
`
`
`
`
`
`
`Steven D. Grimberg
`United States District Court Judge
`
`
`
`
`
`