Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.51.3.252

Background

Strike 3 Holdings, LLC alleged that defendant John Doe shared Strike 3’s copyrighted films without authorization. Strike 3 identified the Internet Protocol address allegedly used to distribute the videos but did not know the account holder’s identity. The opinion states that Comcast was the internet service provider associated with the address and that only the provider could determine the subscriber to whom the address was assigned.

The court recognized that there was no certainty that the account holder was the person who engaged in the alleged distribution. Strike 3 nevertheless argued that the allegations were sufficiently plausible to justify discovery aimed at identifying the account holder. Strike 3 also represented that it did not seek to force innocent people to settle and welcomed procedural protections allowing a defendant to proceed anonymously.

Legal standard and analysis

Federal Rule of Civil Procedure 26(d) allows a court to authorize discovery before the parties’ required Rule 26(f) conference when doing so is convenient and in the interests of justice. Courts in the Ninth Circuit generally require “good cause” for this type of early discovery.

The court applied factors concerning whether the plaintiff had identified the unknown defendant specifically enough for the court to determine that the person could be sued in federal court, described steps taken to locate the person, showed that the case could withstand a motion to dismiss, and demonstrated that the discovery was reasonably likely to produce information allowing service of process. The court concluded that Strike 3 made an adequate showing under those standards.

Ruling and safeguards

Judge Richard Seeborg granted the motion. Strike 3 may serve Comcast with a subpoena under Rule 45 seeking the defendant’s true name and address associated with the Internet Protocol address listed in the complaint. Strike 3 must attach the order to the subpoena. The order also permits subpoenas to other internet service providers identified in response to a subpoena.

The order imposes these protections and requirements:

- If the provider qualifies as a “cable operator,” it must send the subscriber a copy of the order as required by federal law. - Strike 3 must request that the provider forward the order to the subscriber even if the provider is not a cable operator. If the provider declines, Strike 3 must serve the order on the defendant at the same time as, or before, any other service or communication to the defendant. - Strike 3 may use information obtained through the subpoena only to protect and enforce the rights described in its complaint. - Strike 3 may not publicly disclose the information without the court’s permission at least until the Doe defendant has had an opportunity to ask to proceed anonymously or further discovery has occurred. References to the defendant’s identity must be redacted and filed under seal until further notice. - Before using the subpoena process, Strike 3 must file an affidavit confirming that it proposed confidentiality to the defendant, including relevant communications about that proposal. - A provider that wants to charge for producing the information must first confer with Strike 3, may not demand advance payment, and must provide a billing summary and supporting cost reports. - The provider must preserve subpoenaed information while any timely motion to dismiss is pending.

The order authorized discovery and set protections for the unknown defendant; it did not decide whether the defendant infringed Strike 3’s copyrights.