Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC asked for permission to serve a third-party subpoena on Verizon Online LLC, identified in the order as Verizon Fios, before the parties’ required conference about discovery. The subpoena seeks the name and address of the subscriber assigned Internet Protocol address 108.54.228.49. The defendant is captioned as John Doe, subscriber assigned that address.

Court’s analysis

Federal Rule of Civil Procedure 26(d) generally bars a party from seeking discovery before the parties confer as required by Rule 26(f), unless a court authorizes earlier discovery. The court applied a flexible reasonableness-and-good-cause standard and stated that it would scrutinize the request especially carefully because Strike 3 sought both expedited discovery and an order without advance notice to the opposing side.

The court noted that Strike 3 relied on a test concerning requests to cancel subpoenas in order to preserve an objecting party’s anonymity. The court emphasized that anonymity and any future request to cancel the subpoena were not before it. The order therefore was not a decision on the merits of any potential motion to quash, meaning a motion asking the court to cancel or limit the subpoena.

Ruling and procedures

The court found that Strike 3 met the reasonableness-and-good-cause standard, even under the heightened review for a request without advance notice, and granted Strike 3’s motion for permission to serve the subpoena before the Rule 26(f) conference.

The order permits Strike 3 to serve Verizon with a subpoena under Rule 45 and requires counsel to attach the order. Within seven days after service, Verizon must reasonably try to identify the subscriber and give the subscriber a copy of the subpoena and order. If Verizon cannot identify the subscriber with a reasonable degree of technical certainty, it must notify Strike 3’s counsel.

Verizon has 21 days after service to move to cancel or otherwise object to the subpoena. The identified subscriber has 14 days after receiving the subpoena from Verizon to do the same. If no motion or objection is filed, Verizon must provide the requested information within 21 days after notifying the subscriber. Strike 3 may use the information only to protect and enforce the rights described in its complaint, and no one other than Strike 3 and its counsel may receive the information without further court permission. Judge Gregory H. Woods also directed the Clerk to terminate the motion listed at docket number 9.