Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued John Doe, whose identity it had identified only through an Internet Protocol address. Strike 3 alleged that Doe downloaded and distributed its copyrighted adult films through the BitTorrent file-sharing protocol. It asked for permission under Federal Rule of Civil Procedure 26(d)(1) to serve a third-party subpoena on Verizon Online LLC, identified as Doe’s internet service provider, to obtain information identifying Doe.

Strike 3 submitted declarations and forensic evidence describing how it detected the alleged infringement and determined that Verizon was the relevant provider. The opinion also states that Strike 3 has brought thousands of similar cases in courts around the country.

Legal standard and analysis

Rule 26(d)(1) generally prevents a party from seeking discovery before the parties’ required conference unless the court permits earlier discovery. Courts apply a flexible good-cause standard. The court considered five factors identified by the United States Court of Appeals for the Second Circuit: whether the plaintiff made a concrete initial showing of a claim, whether the discovery request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the objecting party’s privacy expectation.

The court concluded that all five factors favored Strike 3. First, Strike 3 made an initial showing of copyright infringement by alleging ownership of valid copyrights registered with the United States Copyright Office and alleging that Doe transmitted its works through file sharing, supported by declarations and forensic evidence. This was an initial showing for purposes of the discovery request, not a final determination that Doe infringed copyright.

Second, the request was specific because it sought the name and address of the subscriber associated with the identified IP address. Third, the court found that Strike 3 had shown it could not obtain Doe’s identity through another method because the internet service provider was the only entity able to connect the IP address with the subscriber’s identity. Fourth, the information was needed to allow Strike 3 to serve Doe and move the case forward. Fifth, the court relied on decisions holding that internet-service-provider subscribers have a minimal expectation of privacy in sharing copyrighted material and found that Strike 3’s interest in learning Doe’s name outweighed that interest.

Ruling and protective order

The court granted Strike 3’s motion and authorized it to serve Verizon with a Rule 45 subpoena. The subpoena may seek only Doe’s true name and current and permanent address. It may not seek additional information, including an email address or telephone number.

Because the allegations involved adult content, the court also ordered protections against possible mistaken identification, embarrassment, or undue burden. Verizon must serve Doe with the subpoena, the order, and the notice to the defendant within 60 days after Verizon receives the subpoena. Doe then has 60 days after receiving notice to file a motion challenging, quashing, or modifying the subpoena, or to request permission to litigate anonymously. If Doe contests the subpoena, Verizon must not release Doe’s contact information to Strike 3 until the court rules on the challenge.

If neither Doe nor Verizon contests the subpoena within the 60-day period, Verizon has 10 days to produce the responsive information. Any information disclosed may be used by Strike 3 only to protect the rights asserted in its complaint. The order was issued by Judge Lewis J. Liman, United States District Judge.