Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.70.71.230

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant assigned internet protocol address 73.70.71.230 used BitTorrent to download and distribute about 26 files containing Strike 3’s copyrighted adult motion pictures. Strike 3 asserted one claim for direct copyright infringement and sought an injunction and statutory damages.

Strike 3 filed an ex parte application for permission to serve a third-party subpoena before the parties’ conference under Federal Rule of Civil Procedure 26(f). The requested subpoena would require nonparty Comcast Cable, the internet service provider, to identify the individual associated with the listed internet protocol address.

Legal standard and analysis

The court explained that early discovery before the Rule 26(f) conference may be authorized for the parties’ and witnesses’ convenience and in the interests of justice. Courts in the Ninth Circuit generally require “good cause,” meaning that the need for expedited discovery must outweigh the possible prejudice to the responding party.

Applying four factors, the court found that Strike 3 had shown good cause. First, Strike 3 identified the Doe defendant with enough specificity for the court to determine that the defendant was a real person who could be sued in federal court. Second, Strike 3 described its use of geolocation and infringement-detection technology, web searches, and consultations with computer investigators and cybersecurity consultants. Third, accepting Strike 3’s allegations as true at this stage, the complaint could withstand a motion to dismiss because Strike 3 alleged ownership of the copyrights and unauthorized copying and distribution. Fourth, the court found that the requested discovery was reasonably likely to identify the defendant because the internet service provider could match the internet protocol address to its subscriber.

The court separately ordered protective measures under Federal Rule of Civil Procedure 26(c). It found good cause to protect a potentially innocent or unwitting subscriber from undue prejudice. Personal information produced by Comcast would be treated as confidential, and the Doe defendant could ask to proceed under a pseudonym.

Order

The court granted Strike 3’s ex parte application. Within 21 days, Strike 3 may serve a Rule 45 subpoena on Comcast Cable requiring it to provide the defendant’s true name and address, and Strike 3 must attach the order. Strike 3 may also subpoena another internet service provider identified in response to the first subpoena.

The internet service provider must serve the subscriber with a copy of the subpoena and the order within 30 days after service. The subscriber then has 30 days to contest the subpoena, including by asking the court to quash or modify it, and may request that identifying information be filed under seal. If the subscriber does not contest the subpoena within 30 days, the provider may produce responsive information within 10 days.

Strike 3 may use the disclosed information only to protect and enforce the rights asserted in the complaint. It may not publicly disclose the information without the court’s permission, and references to the Doe defendant’s identity must remain redacted and under seal until further order. The provider must preserve subpoenaed information while any timely motion to dismiss is unresolved. The order authorized discovery only; it did not decide whether the defendant infringed Strike 3’s copyrights.