Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, identified only through Internet Protocol address 72.80.141.74, downloaded, copied, and distributed Strike 3’s copyrighted works in violation of the Copyright Act. Strike 3 sought permission to serve a third-party subpoena on Verizon Online LLC, identified as Verizon Fios and Doe’s internet service provider, to obtain Doe’s name and address, investigate the alleged infringement, and serve the lawsuit.

Expedited discovery

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

The court found that Strike 3 had made a preliminary showing of copyright infringement by describing its original copyrighted works and providing a detailed analysis of the alleged infringements, including dates, times, and locations. The subpoena was limited to the subscriber’s true name and address associated with the target internet address. The court found that Strike 3 had no alternative way to obtain that information and needed it to serve Doe and continue the case. The court also found that internet subscribers have only a limited expectation of privacy in the transmission or distribution of copyrighted material, while recognizing that the subject matter could cause embarrassment.

Ruling and protections

The court granted Strike 3’s motion for leave to serve a third-party subpoena on Verizon Fios for Doe’s name and address. Strike 3 must include the order and a notice to Doe with the subpoena, and it 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. Strike 3 may not begin settlement discussions before serving the complaint without the court’s permission, although it may participate if Doe initiates discussions.

Verizon Fios must notify Doe of the subpoena and related materials within 60 days after receiving the subpoena. Doe has 60 days after receiving notice to file a motion challenging the subpoena, including a request to cancel or change it. Verizon Fios may not disclose identifying information before that period ends, or while a timely challenge is pending. If no challenge is filed, Verizon Fios has 10 days after the 60-day period to provide the responsive information. The provider must preserve the information while a timely challenge is pending.

Any information disclosed may be used only to protect Strike 3’s rights in this lawsuit. Strike 3’s deadline to serve Doe was extended to 45 days after receiving the information from Verizon Fios. Strike 3 must also file a status letter of no more than two pages every 60 days until Doe answers or otherwise responds; the court stated that failing to do so could result in dismissal for failure to prosecute.

The order addressed discovery and case-management protections. It did not decide whether Doe actually infringed Strike 3’s copyrights.