Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that “John Doe,” identified by the Internet Protocol address 162.83.237.169, downloaded, copied, and distributed Strike 3’s copyrighted movies in violation of the Copyright Act. Strike 3 sought permission to serve a third-party subpoena—a formal demand for information—on Verizon Online LLC, identified as Doe’s internet service provider, to obtain Doe’s name and address, investigate the alleged infringement, and serve the lawsuit.

Court’s analysis

The court applied the standard used for expedited discovery, meaning discovery allowed before the normal schedule when there is good cause. The court considered whether Strike 3 had made an initial showing of an actionable claim, whether the request was specific, whether other ways to obtain the information existed, whether the information was needed to advance the case, and Doe’s expectation of privacy.

The court found that Strike 3 had made an initial showing of copyright infringement by describing its original copyrighted works and providing detailed allegations about the dates, times, and locations of the alleged infringements. The court found the request sufficiently narrow because Strike 3 sought only the subscriber’s name and address associated with the specified Internet Protocol address. It also found that Strike 3 had no other practical way to obtain Doe’s identifying information and could not serve or pursue the case without it. Although disclosure could cause embarrassment because the case involved adult movies, the court found that internet subscribers have a limited privacy expectation concerning the transmission or distribution of copyrighted material and that a protective order could address some privacy concerns.

Ruling and procedures

The court granted Strike 3’s motion for leave to serve a third-party subpoena on Verizon to obtain Doe’s name and address. Strike 3 must include the order and the attached “Notice to Defendant” with the subpoena. Strike 3 may not subpoena Doe’s phone number or email address.

The court also issued a protective order. Doe may proceed anonymously unless the court orders otherwise, and Strike 3 may not begin settlement discussions before serving the complaint without the court’s permission. If Doe initiates settlement discussions, Strike 3 may participate and settle the case.

Verizon has 60 days after service of the subpoena to notify Doe and provide Doe with the subpoena, the order, and the notice. Doe then has 60 days after receiving those materials to file a motion challenging the subpoena, including a motion to cancel or change it. Verizon may not disclose identifying information before that period ends, or while a timely challenge is pending. If no challenge is filed, Verizon has 10 additional days to produce the responsive information. Verizon must preserve the information while a timely challenge is pending.

Any information disclosed may be used only to protect Strike 3’s rights described in the complaint. Strike 3’s deadline to serve the summons and complaint is extended to 45 days after receiving the information from Verizon. Strike 3 must also submit a status letter of no more than two pages every 60 days until Doe answers or otherwise responds. The court warned that failing to submit those letters on time may result in dismissal for failure to prosecute. Judge Jessica G. L. Clarke directed the Clerk of Court to terminate Docket No. 6.