Strike 3 Holdings LLC v. Doe subscriber assigned IP address 73.62.192.71

Background

Strike 3 Holdings, LLC filed 32 similar copyright cases against unnamed John Doe defendants in the District of Minnesota. The complaints alleged that each defendant used the BitTorrent file-distribution protocol to download and distribute one or more of Strike 3’s copyrighted movies without authorization. Strike 3 said its infringement-detection system identified the alleged activity by an internet protocol address, but Strike 3 could not identify the person associated with that address. According to Strike 3, the relevant internet service provider could identify the subscriber by matching the address to the subscriber’s name and address.

In each case, Strike 3 filed an ex parte motion—meaning a motion submitted without advance participation by the opposing party—for permission to serve a Federal Rule of Civil Procedure 45 subpoena before the parties held their Rule 26(f) conference. Strike 3 sought limited early discovery to learn each defendant’s identity, investigate the alleged infringement, and serve the defendant.

Legal standard and analysis

The court explained that discovery generally cannot begin before the Rule 26(f) conference unless the rules, the parties, or the court authorize it. Courts in the district typically apply a good-cause standard to requests for expedited discovery. The court considered five factors: whether the plaintiff showed a concrete preliminary claim of harm, whether the request was specific, whether alternative means existed to obtain the information, whether the information was needed to advance the claim, and the subscriber’s expectation of privacy.

Applying those factors, the court found expedited discovery warranted in all 32 cases. It concluded that Strike 3 had stated an actionable copyright-infringement claim; the requested discovery was limited to each defendant’s name and address; no alternative means existed to obtain that information; the cases could not proceed without identifying the defendants; and, with privacy protections, Strike 3’s right to pursue its claims outweighed each subscriber’s privacy expectation. The court also cautioned that a subscriber associated with an internet protocol address might not be the person who committed the alleged infringement.

Ruling

The court granted all 32 of Strike 3’s ex parte motions for permission to serve third-party subpoenas before the Rule 26(f) conference. In the case captioned Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.62.192.71, No. 24-cv-1530 (PJS/DJF), the motion was granted under the same conditions as the other 31 cases.

The authorized subpoenas may seek only the name and address of the subscriber assigned to the identified internet protocol address during the periods of alleged infringement listed in Strike 3’s complaint. A subpoena must give the internet service provider at least 60 days’ notice before production is required and may request only one category of documents identifying the subscriber. The provider may seek a protective order if it has a legitimate basis.

The provider must notify the subscriber within 14 calendar days after receiving the subpoena. The subscriber then has 45 calendar days from notice to seek a protective order, file a responsive pleading, or do both. Strike 3 must provide the provider with a copy of the order, and the provider must provide that order with the notice to the subscriber. No other discovery was authorized at that time.

Strike 3 may not publicly disclose information produced under the subpoenas until the defendant has had an opportunity to ask to proceed anonymously and the court has ruled on that request. If the defendant does not make that request within 45 days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. Strike 3 also had to file a status report in each case by December 9, 2024, without including information identifying any defendant. Magistrate Judge Dulce J. Foster signed the order.