Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 99.123.4.142

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures and that an unidentified defendant, identified in the complaint by IP address 99.123.4.142, used BitTorrent to download and distribute unauthorized copies. Strike 3 alleged that its investigative tool connected with the device using that IP address and identified alleged infringement involving 44 movies.

Strike 3 asked for permission to serve AT&T Internet with a subpoena under Federal Rule of Civil Procedure 45 before the parties’ required Rule 26(f) conference. The requested subpoena sought only the name and physical address of the person associated with the account for the specified IP address. Strike 3 alleged that AT&T Internet was the entity able to connect the IP address to a subscriber.

Early Discovery

Rule 26(d)(1) generally bars discovery before the Rule 26(f) conference, but permits a court to authorize earlier discovery. The court applied the “good cause” standard, which asks whether the need for expedited discovery outweighs prejudice to the responding party. It also applied factors concerning whether the defendant was likely a real person subject to suit, the plaintiff’s efforts to identify the defendant, whether the complaint could withstand dismissal, and whether the discovery was likely to produce information allowing identification and service.

The court found that all four factors favored Strike 3. The allegations suggested that Doe was likely an identifiable person who used the IP address. Strike 3 described searches and consultations undertaken to locate the person, and its expert stated that AT&T Internet was the only entity able to connect the IP address to a subscriber. The court also found that the complaint sufficiently pleaded a preliminary case of copyright infringement and could withstand a motion to dismiss at that stage.

The court stressed that it was not deciding the ultimate merits of the copyright claim. It found only that Strike 3 had made the showing required for limited early discovery. The court further concluded that the subpoena’s narrow scope, seeking only a name and physical address, limited the burden on AT&T Internet and supported a finding of good cause.

Protective Order

The court separately considered privacy concerns. It noted that the information could identify either Doe or an innocent third party who paid for the internet service, and that the allegations involved sensitive and highly personal subject matter. The court therefore found good cause to protect the person identified by AT&T Internet from annoyance, embarrassment, or unfairness.

The protective order requires information produced in response to the subpoena to be treated as confidential under the restrictions applicable to “Confidential” material in the Northern District of California’s Model Protective Order for Standard Litigation. That treatment continues until the court rules on a motion by Doe or another affected third party seeking continued confidentiality or permission to proceed anonymously.

If Doe or another identified third party does not file a motion to proceed anonymously within 30 days after receiving notice that AT&T Internet produced the information, Strike 3 may file a motion to identify that person. Any notice from Strike 3 must include or attach the court’s order. The order also provides for temporary sealing of papers containing identifying information when a person seeks permission to proceed anonymously, until the court can rule on that request.

Disposition

The court GRANTED Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena on AT&T Internet. The court also ISSUED the limited protective order under Rule 26(c). The order did not determine whether Doe infringed Strike 3’s copyrights.