Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued John Doe, identified only through the alleged Internet Protocol address 72.89.26.149. Strike 3 alleges that John Doe distributed its copyrighted adult movies in violation of the Copyright Act. Because Strike 3 did not know the defendant’s name or address, it moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a subpoena before the parties’ required discovery conference. The subpoena seeks identifying information from Verizon Fios, the internet service provider identified in the motion.

Court’s analysis

The court applied a flexible good-cause standard for early discovery. It considered whether Strike 3 had made a concrete initial showing of a potentially valid claim, whether the discovery request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and the subscriber’s privacy expectations.

The court found that all factors favored Strike 3. It concluded that Strike 3 had made an initial showing of copyright infringement by describing its original works and providing a detailed analysis of alleged copying. It also found that the request was limited to the subscriber’s name and address, that Strike 3 had no reasonable alternative for identifying the defendant and serving the lawsuit, and that the subscriber had only a minimal expectation of privacy in the alleged sharing of copyrighted material.

Ruling and procedures

Magistrate Judge Sarah Netburn granted Strike 3’s motion. Strike 3 may immediately serve Verizon Fios with a Rule 45 subpoena seeking only John Doe’s name and current and/or permanent address associated with the specified Internet Protocol address. The subpoena must include the order and a notice to the defendant; Strike 3 may not request additional information such as an email address or telephone number.

The order also imposes protections for the unidentified subscriber. Strike 3 may not begin settlement discussions before serving the complaint unless the court allows it, although it may participate if the defendant initiates discussions. Verizon Fios must notify the subscriber within 60 days after receiving the subpoena. The subscriber then has 60 days after receiving notice to move to quash or modify the subpoena or to request permission to litigate anonymously. Verizon Fios may not disclose identifying information before that 60-day period ends or before the court decides a timely motion, whichever is later. If no challenge is filed, Verizon Fios has 10 days after the 60-day period to produce the responsive information. Any information disclosed may be used only to protect Strike 3’s rights in the lawsuit.