Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 71.202.130.40

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant using Comcast Cable-provided IP address 71.202.130.40 downloaded and distributed Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said its detection system made direct connections with the IP address and downloaded media files containing copies of its movies. Strike 3 also alleged that it owned registered copyrights in those movies and had not authorized their distribution.

Strike 3 filed one copyright-infringement claim on July 26, 2024. Because Strike 3 could not identify the individual associated with the IP address, it filed an ex parte application—an application made without first notifying or obtaining a response from the other side—for permission to serve Comcast with a third-party subpoena. Strike 3 said the subpoena would seek only the name and addresses of the individual or individuals associated with the IP address.

Legal standard

Federal Rule of Civil Procedure 26(d) allows a court to authorize discovery before the parties’ usual initial discovery conference when appropriate. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for early discovery outweighs potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant: whether the plaintiff identified the defendant specifically enough to show that the defendant is a real person who can be sued in federal court; whether the plaintiff described its efforts to locate and identify the defendant; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of process.

Court’s analysis

The court found that Strike 3 satisfied all four factors. First, Strike 3 identified a person who allegedly directed a BitTorrent client to download and distribute the movies, and traced the downloads to the Northern District of California. The court said these allegations indicated that the defendant was an identifiable adult who likely was either the primary subscriber or someone residing with and known to the subscriber.

Second, the court found that Strike 3 had explained its efforts to identify the defendant and that the IP address alone was insufficient. Third, the court concluded that Strike 3 had sufficiently alleged a basic copyright-infringement claim by alleging ownership of the movies and unauthorized copying and distribution. Fourth, the court accepted Strike 3’s allegation that Comcast could identify the defendant through the IP address.

The court also noted that an internet subscriber may not be the person who committed the alleged infringement. Because the case involved allegations concerning the downloading of adult movies, the court recognized the sensitive and personal nature of the information.

Ruling and conditions

The court GRANTED Strike 3’s ex parte motion for expedited discovery. Strike 3 may immediately serve Comcast with a subpoena under Federal Rule of Civil Procedure 45 seeking the Doe defendant’s true name and addresses, and it must attach a copy of the order.

Comcast must serve the Doe defendant with the subpoena and the order within 30 days after service on Comcast. The Doe defendant then has 30 days after receiving them to file a motion challenging the subpoena, including a motion to quash or modify it. If no timely challenge is filed, Comcast has 10 days to produce the responsive information to Strike 3. Comcast must preserve subpoenaed information while any timely challenge is pending.

The court also issued a limited protective order. Information Comcast provides may not be publicly disclosed until the Doe defendant has had an opportunity to seek permission to proceed anonymously and the court has ruled on that request. If the Doe defendant does not seek anonymous treatment within 30 days after the information is disclosed to Strike 3’s counsel, the limited protection expires. Any identifying information included in a request to proceed anonymously may be filed under seal. Strike 3 may use information obtained through the subpoena only to protect the rights asserted in its complaint.