Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC filed a copyright-infringement action against John Doe, identified in the complaint only by the Internet Protocol (IP) address 68.196.219.141. Strike 3 alleged that Doe downloaded and distributed its copyrighted motion pictures without authorization. Strike 3 did not know Doe’s name or address and asked for permission to serve an early subpoena on Doe’s internet service provider, Optimum Online, provided by CSC Holdings, LLC.

The request was made under Federal Rule of Civil Procedure 26(d)(1), which generally prevents parties from seeking discovery before they confer about the case unless the court authorizes it. Strike 3 sought only Doe’s true name and address so it could identify and serve the defendant.

Court’s analysis

The court applied a flexible good-cause and reasonableness standard for discovery before the parties’ required conference. It considered whether Strike 3 had made an initial showing of copyright infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to pursue the claim, and Doe’s privacy expectation.

The court concluded that all five factors favored Strike 3. It found that Strike 3’s sworn declarations and supporting materials described the copyrighted films, its infringement-detection system, and the alleged copying and distribution, including dates, times, the IP address, and the technology used. The court also found that the request was narrow, that the internet provider was the only identified source that could connect the IP address to a subscriber, and that Strike 3 could not serve Doe or pursue the claims without the information.

The court recognized that disclosure could cause embarrassment and that false identification was a significant risk. It therefore authorized the discovery subject to specific protections.

Order

The court granted Strike 3’s motion to serve a third-party subpoena on Optimum. The subpoena may seek only Doe’s true name and current and permanent address. It may not seek email addresses or telephone numbers.

Optimum must serve Doe with the subpoena, the order, and the notice to the defendant within 60 days after being served with the subpoena. Doe then has 60 days after receiving that notice to file a motion challenging or modifying the subpoena, including a motion to prevent disclosure, or to request permission to litigate anonymously. Optimum may not disclose Doe’s identifying information before that period ends. If Doe or Optimum files a motion to quash the subpoena, Optimum may not disclose the information until the court resolves the issue and orders production.

If no challenge is filed during the 60-day period, Optimum may produce the responsive information to Strike 3 after an additional 10 days. Optimum must preserve subpoenaed information while any timely challenge is pending. Any information ultimately disclosed may be used only to protect Strike 3’s rights stated in its complaint. The order does not decide whether Doe is liable for copyright infringement.