Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued John Doe, identified in the caption as the subscriber assigned Internet Protocol address 70.18.2.178. The notice attached to the order states that Strike 3 alleges Doe illegally downloaded or distributed copyrighted material. Strike 3 did not yet know Doe’s actual name or address and asked for permission to serve a third-party subpoena on Doe’s internet service provider before the parties’ required conference under Federal Rule of Civil Procedure 26(f).

Ruling on the subpoena

The court granted Strike 3’s motion for permission to serve the subpoena on an expedited basis to obtain Doe’s identity. The court relied substantially on the reasons stated in a prior related proceeding. The subpoena may not seek Doe’s email address or telephone number.

The court found substantial privacy concerns because of the nature of the copyrighted material involved and the possibility that the internet provider could identify the wrong person. Doe may therefore proceed anonymously unless the court later orders otherwise.

Procedures and safeguards

The internet provider has 60 days after being served with the subpoena to give Doe a copy of the subpoena, the order, and the attached notice. Doe then has 60 days after receiving the subpoena and order to file a motion challenging it, including a motion to quash or modify the subpoena. The provider may not disclose Doe’s identifying information before that deadline. If Doe or the provider files a timely motion, disclosure must wait until the court resolves the issues and directs the provider to proceed.

The provider must preserve subpoenaed information while a timely challenge is pending. It must confer with Strike 3 and may not charge costs before providing the requested information; if it charges production costs, it must provide Strike 3 with a billing summary and cost report. Any information disclosed may be used only to protect Strike 3’s rights stated in the complaint.

Other orders and disposition

Strike 3 may not begin settlement discussions before serving the complaint without the court’s permission. If Doe starts settlement discussions, Strike 3 may participate and settle the case. Strike 3’s deadline to serve the summons and complaint is extended to 45 days after it receives information from the provider.

Strike 3 must send the court a status letter of no more than two pages every 60 days until Doe answers or otherwise responds to the complaint. The letter must describe Strike 3’s efforts to obtain the needed information and serve Doe. The court warned that failing to submit the letters on time may lead to dismissal for failure to prosecute. The Clerk was directed to terminate the docket entry for the motion, ECF No. 7. This order addressed expedited discovery and related procedures; it did not decide the merits of Strike 3’s copyright allegations.