Strike 3 Holdings v. John Doe subscriber assigned IP address 67.160.223.111

Background

Strike 3 Holdings, LLC alleged that an unnamed defendant, identified in the caption by Internet Protocol address 67.160.223.111, illegally distributed Strike 3’s copyrighted films. Strike 3 had identified the Internet service provider associated with the address as Comcast Cable Communications, LLC, but only the provider could determine which account holder had been assigned that address.

Strike 3 requested permission to conduct early discovery before the parties’ usual discovery-planning conference. Specifically, it sought to serve Comcast with a subpoena under Federal Rule of Civil Procedure 45 requiring Comcast to provide the defendant’s true name and address. The court noted criticism of Strike 3’s litigation practices but also stated that pornographic works receive copyright protection like other content.

Court’s analysis

Federal Rule of Civil Procedure 26(d) permits a court to authorize discovery before the usual Rule 26(f) conference when doing so is convenient for the parties and witnesses and serves the interests of justice. Courts in the Ninth Circuit generally require good cause for this type of early discovery.

The court applied four factors: whether Strike 3 identified the Doe defendant specifically enough for the court to determine that the defendant was a real person who could be sued in federal court; whether Strike 3 described its efforts to locate and identify the defendant; whether the action could withstand a motion to dismiss; and whether the discovery was reasonably likely to lead to information that would allow service of process. The court concluded that Strike 3 satisfied these factors and needed the subpoena to determine the defendant’s identity.

The court also sought to avoid prejudice to a potentially innocent account holder. It noted that courts routinely protect defendants’ identities in similar cases until further discovery provides information about the defendant and whether that person was likely responsible for the alleged conduct.

Ruling and requirements

The court granted Strike 3’s request for leave to serve a third-party subpoena on Comcast. Strike 3 may subpoena Comcast for the true name and address of the defendant to whom Comcast assigned the relevant Internet Protocol address, and it must attach a copy of the order to the subpoena.

The order also permits Strike 3 to serve the same type of subpoena on another Internet service provider identified through the discovery process. Strike 3 must attempt to ensure that the defendant learns, at the earliest possible opportunity, that the defendant may proceed anonymously.

If Comcast qualifies as a cable operator under federal law, it must send the defendant a copy of the order. Strike 3 must also ask Comcast to forward the order to the subscriber regardless of whether Comcast qualifies as a cable operator. If Comcast declines, Strike 3 must serve the order on the defendant at the same time as, or before, any other service or communication with the defendant.

Strike 3 may use information obtained through the subpoena only to protect and enforce the rights asserted in its complaint. It may not publicly disclose the information without the court’s permission at least until the Doe defendant has had an opportunity to seek permission to proceed anonymously or further discovery has occurred. References to the defendant’s identity must be redacted and filed under seal until further order.

Comcast or another provider receiving a subpoena must confer with Strike 3 and may not charge in advance of producing the requested information. A provider that charges production costs must provide billing summaries and cost reports supporting those charges. The provider must also preserve subpoenaed information while any timely motion to dismiss is pending. The order does not decide whether the Doe defendant committed copyright infringement.