Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that an unidentified John Doe defendant downloaded and distributed Strike 3’s copyrighted adult films through the BitTorrent file-sharing network. Strike 3 identified the alleged activity by an Internet Protocol address, 24.38.232.229, but said it did not know the subscriber’s name or address.

Strike 3 moved under Federal Rule of Civil Procedure 26(d)(1) for permission to seek discovery before the parties’ usual conference. It asked to serve a third-party subpoena on CSC Holdings LLC, doing business as Optimum Online, the internet service provider associated with the Internet Protocol address. Strike 3 sought the subscriber’s name and address so it could identify and serve the defendant.

Legal standard and analysis

Before the parties’ required discovery conference, a court may allow discovery when there is good cause under a flexible reasonableness standard. Courts evaluating this type of request consider whether the plaintiff has made an initial showing of infringement, whether the request is specific, whether other ways exist to obtain the information, whether the information is needed to move the case forward, and the defendant’s expectation of privacy.

Judge Ricardo found that the factors favored Strike 3. Based on Strike 3’s submissions, including descriptions of its VXN Scan system and declarations from a computer-forensics specialist and an employee who reviewed the videos, the court found that Strike 3 had made an initial showing that it owned valid copyrights and that the identified Internet Protocol address downloaded and shared the copyrighted works. The court also found that the request for only the defendant’s name and address was specific, that the internet service provider was the only identified source for the information, and that Strike 3 could not serve the defendant or continue the case without knowing the defendant’s identity.

The court recognized that identifying a person in a case involving alleged viewing and transmission of adult films could cause embarrassment. It nevertheless found that internet subscribers have only a limited expectation of privacy in sharing copyrighted material and concluded that procedural protections could address concerns about identifying the wrong person or causing undue embarrassment.

Ruling and protections

The court granted Strike 3’s motion for leave to serve a third-party subpoena. Strike 3 may serve Optimum with a Rule 45 subpoena seeking only the John Doe subscriber’s name and current or permanent address. The subpoena may not request additional information such as an email address or telephone number, and it must include the court’s order and the notice to the defendant.

Optimum 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 receiving notice to file a motion challenging, quashing, or modifying the subpoena, or to request permission to litigate anonymously. If John Doe challenges the subpoena, Optimum must not disclose the identifying information until the court resolves the challenge. If no timely challenge is made, Optimum has 10 additional days to produce the responsive information. Any information disclosed may be used by Strike 3 only to protect the rights asserted in its complaint.