Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, identified only through the internet address 71.251.8.158, distributed Strike 3’s copyrighted adult movies in violation of the Copyright Act. Strike 3 moved for permission to serve a third-party subpoena on Verizon Fios, the internet service provider associated with the address, before the parties held their usual discovery conference. The subpoena sought John Doe’s name and current or permanent address so Strike 3 could identify and serve the defendant.

Court’s Analysis

Under Federal Rule of Civil Procedure 26(d)(1), discovery generally cannot begin before the parties confer, unless the court authorizes it. The court applied a flexible good-cause standard and considered whether Strike 3 had made an initial showing of an actionable claim, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and John Doe’s privacy expectation.

The court concluded that all of those factors favored Strike 3. It found that Strike 3 had adequately described its copyrighted works and provided a detailed analysis supporting its initial infringement claim. It also found that the request was narrowly limited to John Doe’s name and address, that Strike 3 had no reasonable alternative for identifying him, and that the information was needed to serve him. The court stated that internet subscribers have only a minimal privacy expectation in sharing copyrighted material.

Ruling and Protective Conditions

The court granted Strike 3’s motion. Strike 3 may immediately serve a Rule 45 subpoena on Verizon Fios, but may not seek additional information such as an email address or telephone number. Strike 3 must include the order and a notice to the defendant with the subpoena.

Verizon Fios must serve John Doe with the subpoena, the order, and the notice within 60 days after receiving the subpoena. John Doe then has 60 days after service to challenge the subpoena, including by asking the court to quash or modify it, or to request permission to litigate anonymously. If John Doe challenges the subpoena, he must also notify Verizon Fios, which must withhold his contact information until the court rules.

Verizon Fios may not disclose identifying information before the 60-day period ends or before the court resolves any timely motion, whichever is later. If no challenge is filed, Verizon Fios has 10 additional days to provide the requested information. Any information disclosed may be used only to protect Strike 3’s rights as stated in its complaint. Strike 3 also may not begin settlement discussions before serving the complaint unless the court gives permission, although it may participate if John Doe initiates settlement discussions. The clerk was directed to close and mark granted Docket Number 7.