Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 131.93.233.149

Background

The court issued one omnibus order addressing substantively similar motions in 32 copyright cases filed by Strike 3 Holdings, LLC against anonymous John Doe defendants. In each case, Strike 3 alleged that the defendant used the BitTorrent file-distribution protocol to download and distribute Strike 3’s copyrighted movies without authorization. Strike 3 alleged that its infringement-detection system identified the internet address associated with the activity, but that it could not identify the defendant by name. Strike 3 said the relevant internet service provider could connect the internet address to a subscriber’s name and address.

Strike 3 moved for permission to serve a third-party subpoena on each internet service provider before the parties held the conference generally required early in a federal civil case. Strike 3 sought only identifying information so it could learn the defendant’s identity, investigate the alleged infringement, and serve the defendant.

Court’s analysis

Federal Rule of Civil Procedure 26 generally bars discovery before the parties’ required conference unless a rule, agreement, or court order permits it. The court explained that early discovery may be appropriate when a defendant’s identity is unknown. Applying the good-cause standard used in similar cases in the district, the court considered whether the need for early discovery outweighed potential prejudice to the responding party.

The court applied five factors: whether Strike 3 made a concrete initial showing of an actionable claim; whether the discovery request was specific; whether other ways existed to obtain the information; whether the information was needed to advance the case; and the subscriber’s expectation of privacy. The court found that Strike 3 had adequately alleged copyright infringement, that the requested discovery was limited to each subscriber’s name and address, that no alternative means of obtaining the information had been identified, and that the cases could not proceed without identifying the defendants. The court also found that Strike 3’s interest in pursuing its copyright claims outweighed the subscribers’ privacy interests, provided that protective measures were used.

The court did not decide whether any Doe defendant actually infringed Strike 3’s copyrights. It specifically recognized that a subscriber may not be the person who committed the alleged infringement.

Ruling and protections

The court granted each of Strike 3’s 32 motions for permission to serve a third-party subpoena before the required conference. For the case involving the subscriber assigned IP address 131.93.233.149, the order authorized a subpoena under Rule 45 to the internet service provider seeking only the name and address of the subscriber assigned that internet address during the time period of the alleged infringement.

The subpoena must provide at least 60 days’ notice before production is required and may seek only one category of documents identifying the particular subscriber. The internet service provider must notify the subscriber within 14 calendar days after receiving the subpoena. The subscriber then has 45 calendar days from the notice to seek a protective order, file a responsive pleading, or do both. No other discovery was authorized at that time.

Strike 3 may not publicly disclose information produced in response to the subpoena until the defendant has had an opportunity to ask to proceed anonymously and the court has ruled on that request. The order also provides for temporary sealing of identifying information included in such a request and requires Strike 3 to file a status report in each case by December 9, 2024, without including the defendant’s identity.