Strike 3 Holdings v. John Doe subscriber assigned IP address 102.129.252.12

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with IP address 102.129.252.12 used BitTorrent to download and distribute about 36 files containing Strike 3’s copyrighted adult movies. Strike 3 filed an application for leave to serve a third-party subpoena before the parties’ required Rule 26(f) discovery conference. The requested subpoena would require nonparty Spectrum to identify the individual associated with the IP address.

The court also discussed Strike 3’s history of filing thousands of similar lawsuits and seeking subscriber information from internet service providers. It noted concerns that an innocent account holder might be pressured to settle because of the nature of the allegations, the risk of public identification, or the cost of defending the case.

Legal standard and analysis

Under Federal Rule of Civil Procedure 26(d), a court may allow discovery before the Rule 26(f) conference when there is good cause. Courts generally consider whether the need for expedited discovery, in light of the administration of justice, outweighs prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified a real person who could be sued in federal court; whether the plaintiff described its efforts to locate and identify that person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information permitting service of process.

The court found that Strike 3 satisfied all four factors. It found that Strike 3’s allegations about the human activity required to share movies through BitTorrent and its use of geolocation technology sufficiently identified a potentially real defendant. Strike 3 also described its use of infringement-detection and web-search tools and its consultations with computer investigators and cybersecurity consultants.

The court further found that Strike 3 had preliminarily shown that its copyright-infringement claim could withstand a motion to dismiss. Strike 3 alleged ownership of the copyrights and alleged that the defendant downloaded, copied, and distributed the movies without permission. The court accepted those allegations as true for this limited analysis; it did not determine whether the alleged infringement ultimately occurred.

Finally, the court found that Spectrum was reasonably likely to have the defendant’s name and address because the internet service provider was the entity that could match the IP address to the subscriber’s identity.

Protective measures and disposition

The court GRANTED Strike 3’s ex parte application for leave to serve the subpoena, subject to conditions. Within 21 days of the order, Strike 3 may serve a Rule 45 subpoena on Spectrum seeking the defendant’s true name and address, and it must attach the order. Strike 3 may also subpoena another internet service provider identified in response to the first subpoena.

If the provider qualifies as a cable operator, it must send the defendant a copy of the order with the subpoena. The defendant may move to contest, quash, or modify the subpoena within 30 days after receiving it and may request permission to proceed under a pseudonym with identifying information filed under seal. If the defendant does not contest the subpoena within 30 days, the provider may produce the responsive information within 14 days.

The order requires the identifying information to be treated as confidential. Strike 3 may use information produced under the subpoena only to protect and enforce the rights described in its complaint. It may not publicly disclose the information without the court’s permission, and references to the defendant’s identity must be redacted and filed under seal until further order. The provider must also confer with Strike 3 about production costs, may not charge in advance, and must preserve subpoenaed information while any timely motion to dismiss is unresolved.