Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 23.124.104.82

Background

Strike 3 Holdings, LLC filed an ex parte application—an application made without a prior conference with the opposing party—for permission to serve a third-party subpoena before the parties’ Rule 26(f) conference. The requested subpoena concerned AT&T Internet, identified as the internet service provider, and the internet protocol address listed in Exhibit A to the complaint.

Order

The court found that Strike 3 had shown “good cause” to serve the subpoena. It allowed Strike 3 to serve AT&T Internet with a subpoena under Federal Rule of Civil Procedure 45 seeking the defendant’s true name and address. Strike 3 must attach a copy of the order to the subpoena.

The court also allowed Strike 3 to serve the same type of subpoena on any service provider identified in response to a subpoena as providing internet services to the defendant.

If AT&T Internet qualifies as a “cable operator” under 47 U.S.C. § 522(5), the order requires it to follow 47 U.S.C. § 551(c)(2)(B), which permits disclosure of personal identifying information under a court order when the subscriber is notified. The internet service provider must serve the subscriber with copies of the subpoena and order within 30 days after service on the provider, using any reasonable method, including first-class mail or overnight service to the subscriber’s last known address.

Challenges and limits

Each subscriber and the internet service provider has 30 days after service to file a motion challenging the subpoena, including a motion to quash or modify it. If a subscriber does not challenge the subpoena within that period, the provider has 10 additional days to produce the responsive information for that subscriber. The provider must preserve the subpoenaed information while awaiting production or the final resolution of a timely motion to quash.

Strike 3 may use information produced in response to the subpoena only to protect and enforce its rights described in the complaint. The defendant’s name and other identifying information must be filed provisionally under seal and not otherwise disclosed. After the defendant is served, the court may require the defendant to request permission to proceed anonymously.

Disposition and significance

Judge A. J. Cisneros authorized the requested pre-conference third-party discovery subject to the notice, challenge, preservation, confidentiality, and use restrictions described in the order. The opinion does not decide the merits of Strike 3’s underlying claims.