Strike 3 Holdings v. John Doe subscriber assigned IP address 102.129.252.38

Background

Strike 3 alleged that it owns copyrights in certain adult motion pictures and that the unidentified defendant used the specified Internet Protocol (IP) address and the BitTorrent file-sharing network to download and distribute copies of 29 movies without authorization. Strike 3 said its investigation used MaxMind to connect the IP address to a physical address in the Northern District of California and identified Spectrum Internet as the internet service provider associated with the address.

Because the defendant had not yet been identified or served, Strike 3 asked for permission to serve Spectrum with a third-party subpoena before the parties’ conference required by Federal Rule of Civil Procedure 26(f). Strike 3 represented that the subpoena would seek only the name and physical address of the natural person who subscribed to internet service for IP address 102.129.252.38.

Early subpoena

The court explained that early discovery may be allowed for good cause when the need for expedited discovery, considering the administration of justice, outweighs prejudice to the responding party. It applied factors concerning whether the defendant was sufficiently identified, the plaintiff’s efforts to locate the defendant, whether the complaint could withstand a motion to dismiss, and whether the discovery was likely to produce information allowing service.

The court found that all four factors favored Strike 3. It found that the allegations sufficiently indicated that the defendant was likely a real person who could be sued, that Strike 3 had described efforts to identify the defendant, and that the complaint sufficiently pleaded a prima facie copyright-infringement claim for this stage of the case. The court expressly stated that it was not deciding the ultimate merits of the copyright case. It also found that Spectrum was likely to have information linking the IP address to a subscriber and that the subpoena’s narrow scope limited the burden on Spectrum.

The court therefore granted Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena to Spectrum Internet. The subpoena could seek only the specific identifying information described in the order.

Protective order

On its own motion, the court issued a limited protective order under Rule 26(c). The order applies to information Spectrum produces in response to the subpoena. All parties must treat that information as confidential under the restrictions applicable to material designated “Confidential” in the Northern District of California’s Model Protective Order for Standard Litigation.

The court found good cause because the allegations concerned adult motion pictures and the subscriber might be an innocent third party who was not the alleged infringer. The confidential treatment continues until the court rules on a motion by the defendant or another affected third party seeking continued confidentiality or permission to proceed anonymously. If the identified person does not file such a motion within 30 days after receiving notice that Spectrum produced the information, Strike 3 may seek withdrawal or modification of the limited protective order. Papers seeking anonymous litigation that contain identifying information may be filed under seal until the court rules on the request.

Disposition

The court granted the request for the limited early subpoena and issued the limited protective order. The order did not determine whether the unidentified defendant infringed Strike 3’s copyrights.