Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe downloaded and distributed its copyrighted adult motion pictures. Strike 3 had identified the internet protocol (IP) address associated with the alleged activity but did not know the defendant’s name or address. It asked for permission to serve an early subpoena on the defendant’s internet service provider, Verizon Online LLC (Verizon Fios), before the parties held the conference that normally precedes discovery.

Legal standard and analysis

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties’ required conference unless the court allows it. The court applied a flexible good-cause and reasonableness standard, considering whether Strike 3 had made a preliminary showing of copyright infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to pursue the case, and the defendant’s privacy expectations.

The court found that all five factors favored Strike 3. It determined that Strike 3 had adequately described its copyrighted works and the alleged copying, including the dates and times of the alleged infringements. The requested discovery was limited to the subscriber’s name and address. The court also accepted Strike 3’s position that the internet service provider was the only entity able to connect the IP address to its subscriber. Without the subpoena, Strike 3 said it could not identify or serve the defendant and could not continue pursuing the action.

The court recognized that subscribers have a limited expectation of privacy in sharing copyrighted material, while also finding a substantial risk of mistaken identification, annoyance, embarrassment, oppression, or undue burden. It therefore required a protective order and notice procedure.

Order

The court granted Strike 3’s motion. Strike 3 may serve a Rule 45 subpoena seeking only the name and current and/or permanent address of the subscriber associated with IP address 96.246.242.103. The subpoena may not request additional information, including an email address or telephone number.

The internet service provider must notify the defendant within 60 days after receiving the subpoena by providing the subpoena, the court’s order, and the attached notice. The defendant then has 60 days after receiving notice to file a motion challenging the subpoena or to request permission to litigate anonymously. If the defendant contests the subpoena, the internet service provider must not release the information unless and until the court rules on the challenge. The provider must preserve the information while a timely challenge is pending.

If neither the defendant nor the provider challenges the subpoena within the 60-day period, the provider has 10 additional days to disclose the responsive information. Strike 3 may use any disclosed information only to protect the rights asserted in its complaint. Judge Analisa Torres directed the Clerk of Court to terminate the motion at ECF No. 11.