Strike 3 Holdings v. John Doe subscriber assigned IP address 71.198.140.172

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures. It alleged that John Doe, identified in the complaint by Internet Protocol (IP) address 71.198.140.172, used BitTorrent to download and distribute copies of 29 movies without permission. Strike 3 said its investigation used Maxmind to trace the IP address to a physical address in the Northern District of California and identified Comcast Cable Communications, LLC as the internet service provider associated with the address.

Strike 3 filed an application under Federal Rule of Civil Procedure 26(d)(1) for permission to serve Comcast with a subpoena before the parties’ required discovery conference. The requested subpoena sought only the name and physical address of the person associated with the account for the specified IP address. John Doe had not yet been identified or served, so no opposition was filed.

Early subpoena

The court applied the standard requiring good cause for discovery before the normal schedule. It found that all four relevant factors favored the request: Strike 3 had sufficiently alleged that John Doe was a real person who could be sued in federal court; Strike 3 described efforts to identify the person; the complaint sufficiently pleaded copyright infringement to withstand a motion to dismiss at this stage; and Comcast was likely to have information that could identify the subscriber.

The court emphasized that it was not deciding the ultimate merits of the copyright case. It found only that Strike 3 had established a preliminary case sufficient to justify the requested discovery. The court also found that the subpoena was narrow, that the burden on Comcast appeared limited, and that the need to identify the defendant outweighed the potential prejudice to Comcast.

The court therefore granted Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena on Comcast before the Rule 26(f) conference.

Protective order

The court separately considered privacy concerns under Federal Rule of Civil Procedure 26(c), which permits protective orders to prevent annoyance, embarrassment, oppression, or undue burden or expense. It found good cause to protect the identity of the person Comcast identified because the allegations involved sensitive and highly personal adult movies. The court also noted that the Comcast subscriber might not be the person who allegedly committed the infringement and could instead be an innocent third party.

The court issued a limited protective order requiring all information Comcast produces in response to the subpoena to be treated as confidential under the Northern District of California’s Model Protective Order for Standard Litigation. That protection will continue until the court rules on a motion by John Doe or another affected third party seeking continued confidential treatment or permission to proceed anonymously.

If the identified person does not file a motion to proceed anonymously within 30 days after receiving notice that Comcast produced the information, Strike 3 may seek withdrawal or modification of the confidential treatment. Any notice from Strike 3 must include or attach the court’s order. Papers containing identifying information in an anonymity request may be filed under seal until the court considers that request.

Disposition

The order granted the limited early subpoena application and issued the limited protective order. It did not determine whether John Doe is liable for copyright infringement.