Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC, which the opinion describes as an owner and distributor of adult films, sued John Doe. Strike 3 alleged that Doe downloaded and distributed its copyrighted films through BitTorrent, a peer-to-peer file-sharing system. Strike 3 identified Doe only through an Internet Protocol address and asserted that Verizon Online LLC was the internet service provider that could connect that address to a subscriber’s identity.

Strike 3 moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve Verizon with a third-party subpoena before the parties’ required discovery conference. The requested information was Doe’s name and address so Strike 3 could identify and serve the defendant.

Court’s analysis

The court applied the Second Circuit’s five-factor standard for deciding whether there was good cause for early discovery: whether the plaintiff showed a preliminary claim of actionable harm, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the opposing party’s expectation of privacy.

The court concluded that all five factors favored Strike 3. It found that Strike 3 had adequately alleged ownership of valid copyrights and had submitted declarations and forensic evidence supporting its allegation that Doe transmitted the copyrighted works through file sharing. The court found the discovery request sufficiently specific because it sought only the subscriber’s name and address associated with the identified Internet Protocol address.

The court also found that Strike 3 had shown it could not obtain Doe’s identity by another method because the internet service provider was the entity that could connect the address to a subscriber. The information was necessary for Strike 3 to identify and serve Doe. Although Doe had a privacy interest, the court relied on decisions finding that internet service provider subscribers have a minimal expectation of privacy in sharing copyrighted material and concluded that Strike 3’s interest in learning Doe’s name for service outweighed that interest.

Ruling and protective procedures

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

The court also ordered protective procedures because the case involved alleged distribution of adult content and the court identified a substantial risk of mistaken identification, embarrassment, or undue burden. Verizon must serve Doe with the subpoena, the order, and the notice to defendant within 60 days after being served with the subpoena. Doe then has 60 days from receiving notice to file a motion challenging the subpoena, including a motion to cancel or modify it, or to ask to litigate anonymously. If Doe contests the subpoena, Verizon must not release Doe’s contact information to Strike 3 while the challenge is pending.

If neither Doe nor Verizon contests the subpoena within the 60-day period, Verizon has 10 days to produce the responsive information. Strike 3 may use information disclosed under the subpoena only to protect the rights described in its complaint. The order allowed discovery to identify Doe; it did not decide whether Doe actually infringed Strike 3’s copyrights.