Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC filed a copyright-infringement action against a defendant identified as John Doe. The complaint alleged that the infringement was connected to Internet Protocol address 71.251.25.209. Strike 3 moved for permission to serve Verizon Fios with a third-party subpoena before the parties’ required conference under Federal Rule of Civil Procedure 26(f). The subpoena sought the name and address associated with the Internet Protocol address.

Reasoning

Federal Rule of Civil Procedure 26(d) generally prohibits discovery before the Rule 26(f) conference unless the court authorizes it. Applying a flexible good-cause and reasonableness standard, with careful scrutiny because Strike 3 made the request without advance notice to the defendant, the court found good cause for early discovery. The court relied on its reasoning in prior related proceedings, including other cases involving Strike 3. It emphasized that Strike 3 sought only the defendant’s true name and address and accepted an appropriate protective order. The court also recognized privacy concerns and the possibility that an Internet service provider could identify the wrong person.

The court expressly stated that its order did not decide the merits of any future motion to quash the subpoena or preserve the defendant’s anonymity.

Order and protections

The court granted Strike 3’s motion for leave to serve a third-party subpoena on Verizon Fios before the Rule 26(f) conference. The order provides that:

- John Doe may proceed anonymously unless the court orders otherwise. - Strike 3 may not begin settlement discussions before serving the complaint without court permission. If the defendant begins settlement discussions, Strike 3 may participate and settle the case. - Strike 3 may immediately serve a subpoena under Rule 45 seeking only the defendant’s name and address associated with Internet Protocol address 71.251.25.209. It may not seek a telephone number or email address. The subpoena must include the order and the attached notice to the defendant. - Strike 3 may issue a similar subpoena to another Internet service provider identified as the defendant’s provider in response to a subpoena. - Within 60 days after receiving a subpoena, Verizon Fios must reasonably attempt to identify the defendant and provide the defendant with the subpoena, the order, and the notice. If it cannot identify the person connected to the Internet Protocol address with reasonable technical certainty, it must notify Strike 3’s counsel. - The defendant has 60 days after receiving the subpoena, order, and notice to challenge the subpoena, including by moving to cancel or modify it. Verizon Fios may not disclose the defendant’s information before that period ends. If the defendant or an Internet service provider files a challenge, disclosure must wait until the court resolves it and orders disclosure to resume. - If there is no challenge or other objection, Verizon Fios has 10 days to provide the subpoenaed information to Strike 3. The provider must preserve the information while any timely challenge is pending. - The information may be used only to protect and enforce Strike 3’s rights described in the complaint. It may not be disclosed to anyone other than Strike 3 and its counsel without further court permission. - Verizon Fios and any other Internet service provider receiving a subpoena must confer with Strike 3 and may not demand payment before providing the requested information. If a provider charges production costs, it must provide a billing summary and cost report.

The court ordered Strike 3 to file a status letter about the third-party discovery by June 9, 2025, and directed the clerk to terminate the motion docketed as Dkt. No. 6.