Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 99.102.94.86

Background

Strike 3 alleged that it owns copyrights registered for certain adult motion pictures. It sued an unidentified defendant, called John Doe, based on Internet activity associated with IP address 99.102.94.86. Strike 3 alleged that the user of that address downloaded and distributed copies of its motion pictures through BitTorrent without authorization.

Strike 3 alleged that its investigative tool, VXN Scan, connected with the device using the IP address and obtained information about files shared through BitTorrent. It also alleged that MaxMind’s geolocation tool traced the IP address to a physical address in the Northern District of California and identified AT&T Internet as the Internet service provider associated with the address.

Strike 3 asked for permission to serve AT&T Internet with a subpoena before the parties’ required discovery conference. The proposed subpoena sought only the name and physical address of the person or people whose account was associated with the IP address. John Doe had not yet been identified or served, so no opposition was filed.

Early Discovery

Federal Rule of Civil Procedure 26(d)(1) generally prevents a party from seeking discovery before the Rule 26(f) conference, but permits a court to allow earlier discovery. The court applied the good-cause standard, which asks whether the need for early discovery outweighs the prejudice to the person or entity responding to it.

The court applied four factors used for discovery seeking to identify an unknown defendant: whether the defendant is likely a real person who can be sued in federal court; the steps taken to locate and identify the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery is likely to produce information identifying the person so that service can be made.

The court found that all four factors favored Strike 3. It concluded that the allegations suggested John Doe was likely an identifiable person who used the IP address and that the court was likely to have jurisdiction over the person. The court also found that Strike 3 had described efforts to identify the person and that the IP address alone was not enough to do so.

The court further concluded that Strike 3’s complaint sufficiently pleaded copyright infringement to withstand a motion to dismiss at this stage. It expressly stated that this conclusion did not decide the ultimate merits of the case. Finally, the court found that AT&T Internet was likely to possess information that could identify the subscriber and allow Strike 3 to serve the defendant, although the subscriber might not be the proper defendant.

The court determined that the proposed discovery was narrow, imposed a limited burden on AT&T Internet, and was necessary to allow the case to proceed against an unidentified defendant. It therefore found good cause for the early subpoena.

Protective Order

The court also considered whether confidential treatment was needed for information produced in response to the subpoena. It found good cause to protect the privacy of John Doe and any third party identified by AT&T Internet because the allegations concerned adult motion pictures and could cause embarrassment or other harm. The court noted that the subscriber could be an innocent third party who merely paid for the Internet service.

The court issued a limited protective order on its own motion. Information produced by AT&T Internet in response to the subpoena must be treated as confidential under the restrictions applicable to material designated “Confidential” in the Northern District of California’s Model Protective Order for Standard Litigation.

That confidential treatment continues until the court rules on a motion by John Doe or another affected third party seeking continued confidential treatment or permission to proceed anonymously. The order also requires any notice from Strike 3 to an identified person to include or attach the order. The opinion states that an identified person has thirty days after receiving notice that AT&T Internet produced the information to file a motion for permission to proceed anonymously.

Disposition

The court GRANTED Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena on AT&T Internet and ISSUED a limited protective order. The subpoena is limited to the specific identifying information described in the order. The court did not enter a final ruling on the copyright-infringement allegations.