UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17-cv-2338 (TJK) STRIKE 3 HOLDINGS, LLC, Plaintiff ,
v. JOHN DOE subscriber assigned IP address 68.33.67.239, Defendant

.

MEMORANDUM OPINION Before the Court is Plaintiff’s Motion for Leave to Serve a Thi rd Party Subpoena Prior to a Rule 26(f) Conference. ECF No. 5. For the reasons stated he rein, this Motion is GRANTED

. I. FACTUAL BACKGROUND Plaintiff Strike 3 Holdings, LLC owns the rights to certain adu lt entertainment films. ECF No. 1 (“Compl.”) ¶ 2. Plaintiff alleges that Defendant, cu rrently identif ied as John Doe subscriber assigned IP addr ess 68.33.67.239, has been downloadi ng and distributing these films using a BitTorrent protocol i n violation of the Copyright Act, 17 U.S.C. §§ 101 et seq. Compl. ¶¶ 4-6, 23-32. Plaintiff further al leges that it used geolocat ion technology to trace the IP address used by Defendant to a physical add ress in the District of Colu mbia. Id. ¶ 9. Plaintiff has moved for leave to file a third-party subpoena onDefendant’s internet service provider (“ISP”) to “le arn Defendant’s identity, invest igate Defendant’s role in the infringement, and effectuate ser vice.” ECF No. 6 (“Pl.’s Mem.” ) at 2. Plaintiff asserts that the subpoena “will only demand the tru e name and address of Defenda nt” and that the information will only be used to prosecute c laims in its complaint. Id.2 II. LEGAL STANDARD A party ordinarily “may not seek d iscovery from any source” pri or to a conference under Rule 26(f) unless “authorize d . . . by court order.” Fed. R. C iv. P. 26(d)(1). “To determine whether to authorize discovery pr ior to a Rule 26(f) conference in a particular cas e, this district has applied a ‘good cause’ standard.” Malibu Media, LLC v. Doe , 64 F. Supp. 3d 47, 49 (D.D.C. 2014) (quoting Warner Bros. Records v. Does 1-6 , 527 F. Supp. 2d 1, 2 (D.D.C. 2007)). “Good cause to take discovery prior t o the Rule 26(f) conference exis ts where the discovery is necessary ‘before th[e] suit can progress further.’” Malibu Media, LLC v. Doe , No. 15-cv-986 (RDM), 2015 WL 5173890, at *1 (D.D.C. S ept. 2, 2015) (alteration in or iginal) (quoting Arista Records
LLC v. Does 1-19 , 551 F. Supp. 2d 1, 6 (D.D.C. 2008)). A plaintiff also “must ‘have a t least a good faith belief that such discovery will enable it to show that the court has pers onal jurisdicti on over the defen dant[s].’” AF Holdings, LLC v. Does 1-1058 , 752 F.3d 990, 995 (D.C. Cir. 2014) (alte ration in original) ( quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC , 148 F.3d 1080, 1090 (D.C. Cir. 1998)). “The Copyright Act does not provide for the exercise of personal jur isdiction over alleged infringers on any basis.” Malibu Media, LLC v. Doe , 177 F. Supp. 3d 554, 556-57 (D.D.C. 2016) (citing Exquisite Multimedia, Inc. v. Does 1-336 , No. 11-cv-1976 (RWR/JMF), 2012 WL 177885, at *2 (D.D.C. Jan. 19, 2012)). Thus, a plai ntiff “must predicate thi s Court’s jurisdiction over the infringers on the reach of Di strict of Columbia law.” Id . Under the District of Columbia’s longarm statute, “the only conceivabl e way that personal jurisdicti on might properly be exercised” is if Defendant is a “resident[] of the District of Columbia or at least downloaded the copyrighted work in the District.” AF Holdings , 752 F.3d at 996 (citing D.C. C ode § 13-423(3), (4)).3 III. ANALYSIS Plaintiff has satisfied the good cause standard to serve discov ery prior to a Rule 26(f) conference. As an initial matte r, “this suit cannot move forwa rd without Plaintiff first being able to identify Defendant so tha t service can be effected.” Malibu Media, LLC v. Doe , No. 16-cv639 (RC/AK), 2016 WL 1698263, at *2 ( D.D.C. Apr. 27, 2016). Ac cording to a declaration provided by Plaintiff, Defendant’s internet service provider is the only entity that can identify Defendant by correlating the IP a ddress that has been linked to the alleged infringement with its subscriber. ECF No. 5-3 ¶ 12. Plaintiff has also establish ed a good faith belief that this Co urt has personal jurisdiction over Defendant. Plaintiff used ge olocation technology to trace Defendant’s IP address to a physical location within the Dist rict of Columbia. Pl.’s Mem. at 6. The D.C. Circuit “has suggested that reliance on ‘geol ocation services’ of this sort is sufficient to justify a ‘good faith belief’ that a district court ha s personal jurisdiction over un known defendants.” Malibu Media , 2015 WL 5173890, at *2 (quoting A.F. Holdings , 752 F.3d at 996); see also Malibu Media , 2016 WL 1698263, at *2 (“Using a geolocati on service that estimates that location of Internet users based on their IP addresses is s ufficient to demonstrate a good faith belief that the court has personal jurisdiction ove r the defendant.”); Nu Image, Inc. v. Does 1-23,322 , 799 F. Supp. 2d 34, 41 (D.D.C. 2011) (“Plaintiff ha s a good faith basis to believe a putative defendant may be a District of Columbia resident i f a geolocation service places h is/her IP address within the District of Columbia . . . .”) (emphasis i n original). Thus, in its “br oad discretion to . . . dictate the sequence of discovery,” Watts v. SEC , 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting Crawford-El
v. Britton , 523 U.S. 574, 598 (1998)), the Court authorizes Plaintiff to serve limited discovery on Defendant’s ISP.4 IV. PROTECTIVE ORDER Plaintiff notes that in simila r cases involving adult content, some courts “have found it appropriate to issue a protective order establishing procedural safeguards,” and it has encouraged this Court to do so here if it deems it appropriate. Pl.’s Mem . at 7-8. The Court finds that a protective order is warranted he re. “The fact that a copyright ed work was illegally downloaded from a certain IP address does not necessarily mean that the ow ner of that IP address was the infringer.” Media Prods., Inc. v. Does 1-26 , No. 12-cv-3719 (HB), 2012 WL 2190613, at *1 (S.D.N.Y. June 12, 2012). “Indeed, the true infringer could ju st as easily be a third party who had access to the internet conne ction, such as a son or daughte r, houseguest, neighbor, or customer of a business offering a n internet connection,” and “[ t]here is a real risk that defendants might be falsely identified and f orced to defend themselves aga inst unwarranted allegations.” Id

. There is also a risk that “the innocent defendant may be coerce d into an unjust settlement with the plaintiff to prevent the dissemination of publicity surroun ding unfounded allegations.” Id . In sum, absent a protective order , “there is no reason to conclude that adequate protections exist to safeguard the individuals or entit ies subscribing to the implic ated IP address[] against the danger of ‘annoyance, embarrassment , oppression, or undue burden or ex pense.’” In re Malibu Media Adult Film Copyright Infringement Cases , Nos. 15-cv-1855 (SJF) (SIL) et al. , 2015 WL 3605834, at *4 (E.D.N.Y. June 8, 2015) (quoting Fed. R. Civ. P. 26(c)). In light of these considerati ons, Plaintiff shall be allowed t o serve early discovery by serving a Rule 45 subpoena on the ide ntified ISP that seeks inf ormation sufficient to identify John Doe subscriber assigne d IP address 68.33.67.239. However, if and when the ISP is served with a subpoena, Plaintiff sha ll provide the ISP with a copy of this Memorandum Opinion and the accompanying Order with its subpoena. The ISP shall give w ritten notice, which may5 include e-mail notice, and sha ll include a copy of the subpoena , this Memorandum Opinion, and the accompanying Order, to the subscriber in question at least twenty (20) business days prior to releasing the subscriber’s ide ntifying information to Plaintiff . Any motion to quash the subpoena shall be filed before the retur n date of the subpoena, which sh all be no earlier tha n forty-five (45) calendar days from the date of s ervice. The ISP shall preserve any subpoenaed information pending the resolution of any timely-filed motion to quash. Any information disclosed to Plaintiff in response to a Rul e 45 subpoena may be used by Plai ntiff solely for the purpose of protecting Plaintiff’s rights a s set forth in the Complaint. See ECF No.1. On or before February 20, 2018, Plaintiff shall file a Status Report with the Court b riefly outlining the progress of the discovery authorized by the accompanying Order.
V. CONCLUSION For the reasons set forth above, the Court GRANTS Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Pri or to a Rule 26(f) Conference, ECF No. 5. A separate order will be issued accompanying this opinion.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: January 11, 2018