Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings moved for permission to serve a third-party subpoena before the parties held the conference required by Federal Rule of Civil Procedure 26(f). The proposed subpoena would be served on Verizon Online LLC, the internet service provider identified in the order. Strike 3 sought the true name and address of the John Doe subscriber associated with internet protocol address 68.129.246.61, as identified in Exhibit A to the complaint.

Court’s Ruling on Early Discovery

The court found that Strike 3 had shown “good cause” to obtain this information before the Rule 26(f) conference. The order permits Strike 3 to serve Verizon with a subpoena under Rule 45, provided that Strike 3 attaches a copy of the order. The subpoena may seek the defendant’s true name and address, but not the defendant’s telephone number or email address.

Within seven days after receiving each subpoena, Verizon must reasonably attempt to identify the John Doe defendant and provide that person—not Strike 3—with copies of the subpoena and the order. If Verizon cannot identify the user of the internet protocol address with a reasonable degree of technical certainty, it must notify Strike 3’s counsel in writing.

Verizon may move to cancel or object to the subpoena within 21 days. The potential defendant also has 21 days after receiving the subpoena from Verizon to move to cancel or object. If no motion to cancel or objection is filed, Verizon must provide the requested information to the court, not directly to Strike 3, within 21 days after notifying the defendant. That submission must be made privately and under seal, and the information will be disclosed to Strike 3’s counsel by the court. The order prohibits disclosure of telephone numbers and email addresses.

Anonymity and Use of Information

The court found good cause for the defendant to proceed anonymously because the allegations concern the claimed unlawful downloading of adult movies. The defendant may not be publicly identified by true name or other identifying information in this case unless the court later orders otherwise. Strike 3 and Verizon are prohibited from publicly disclosing the defendant’s identifying information without a further court order. Strike 3 may use information disclosed by the court only to litigate this case.

Disposition and Classification

The order authorizes Strike 3 to serve the specified third-party subpoena before the Rule 26(f) conference and imposes procedures protecting the defendant’s opportunity to object and the confidentiality of identifying information. It does not decide whether the alleged downloading occurred or whether Strike 3 will ultimately prevail. Judge Colleen McMahon entered the order.