Strike 3 Holdings v. John Doe subscriber assigned IP address 172.10.234.247

Background

Strike 3 Holdings, LLC sought an ex parte motion, meaning a request made without the opposing party participating at that stage, for permission to serve a third-party subpoena on AT&T Internet before the required Rule 26(f) conference. AT&T Internet was identified as the internet service provider for the subscriber assigned IP address 172.10.234.247.

Court’s Analysis

The court found that Strike 3 had shown good cause for early discovery. The court stated that Strike 3 had: (1) identified the defendant with enough specificity for the court to determine that the defendant was a real person or entity that could be sued in federal court; (2) identified steps previously taken to locate the defendant; (3) shown that its action could withstand a motion to dismiss; and (4) shown a reasonable likelihood that discovery could identify the defendant so that service of process would be possible.

The court also noted that Strike 3’s application indicated that it had satisfied the copyright-registration requirements under 17 U.S.C. § 411(a). The court cited the rule that a bare allegation that an internet subscriber is associated with an IP address connected to infringing activity is not enough by itself to state a plausible direct or contributory copyright-infringement claim. But, based on the record at this stage, the court concluded that Strike 3 could use limited discovery to identify the defendant.

Ruling

The court granted Strike 3’s application and ordered the following:

- Strike 3 may serve a Rule 45 subpoena on AT&T Internet requiring it to provide the true name and address of the subscriber to whom AT&T Internet assigned IP address 172.10.234.247. Strike 3 must attach the order to the subpoena. - AT&T Internet must serve the subscriber with copies of the subpoena and order within 30 days after the subpoena is served on AT&T Internet. AT&T Internet may use any reasonable method, including first-class mail or overnight service to the subscriber’s last known address. - Strike 3 may use information disclosed in response to the subpoena only to protect and enforce the rights described in its complaint. - AT&T Internet may object to the subpoena and may seek a protective order. - If AT&T Internet provides the subscriber’s identity, Strike 3 may not publicly disclose that information without the subscriber’s consent or leave of court.

Judge Virginia K. DeMarchi signed the order as a United States Magistrate Judge. The order authorized discovery to identify the subscriber; it did not decide whether the subscriber infringed copyright.