Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued John Doe, whose identity was known to Strike 3 only through an Internet Protocol address. Strike 3 alleged that Doe illegally downloaded and distributed Strike 3’s copyrighted adult films through BitTorrent, a peer-to-peer file-sharing system. Strike 3 asked for permission under Federal Rule of Civil Procedure 26(d)(1) to serve a third-party subpoena on CSC Holdings LLC, identified as Optimum Online, Doe’s internet service provider. Strike 3 said Optimum Online was the only entity that could connect the Internet Protocol address to the subscriber’s identity.

Legal standard and analysis

Before the parties hold their required discovery conference, Rule 26(d)(1) generally bars discovery unless the court authorizes it. Courts may allow early discovery when there is good cause, assessed under a flexible reasonableness standard. The court applied five factors: whether the plaintiff made a concrete preliminary showing of harm, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the affected person’s expectation of privacy.

The court found that Strike 3 satisfied those factors. Strike 3 adequately alleged ownership of valid copyrights and alleged that Doe transmitted its works through file sharing, supported by declarations and forensic evidence. The requested discovery was limited to the subscriber’s name and address associated with the identified Internet Protocol address. The court found no alternative way for Strike 3 to learn Doe’s identity and concluded that the information was needed to serve Doe and move the case forward. It also found that an internet-service-provider subscriber has a minimal expectation of privacy in sharing copyrighted material, and that Strike 3’s interest in learning Doe’s name outweighed that privacy interest.

Ruling and protective order

Judge Lewis J. Liman granted Strike 3’s motion and ordered that Strike 3 may serve a Rule 45 subpoena on Optimum Online to obtain John Doe’s true name and current and permanent address. The subpoena may not seek additional information, including an email address or telephone number.

The court also ordered protective procedures because of the risk of mistaken identification, embarrassment, oppression, or undue burden associated with allegations involving adult content. Optimum Online must serve Doe with the subpoena, the order, and a notice to the defendant within 60 days after receiving the subpoena. Doe then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to quash or modify it, or to request permission to litigate anonymously. If Doe contests the subpoena, Optimum Online must not release the contact information until the court rules on the challenge. If neither Doe nor Optimum Online contests the subpoena within the applicable 60-day period, Optimum Online has 10 days to provide the requested information, which Strike 3 may use only to protect the rights asserted in its complaint.