Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 50.235.81.254

Background

Strike 3 Holdings, LLC sued John Doe subscriber assigned IP address 50.235.81.254 for copyright infringement. Strike 3 alleged that John Doe infringed 30 of Strike 3’s adult motion pictures using the BitTorrent protocol. Because John Doe’s name and address were not identified, Strike 3 filed an ex parte application—an application made without advance notice to the opposing party—for permission to serve a third-party subpoena before the parties’ required Rule 26(f) conference.

The requested subpoena would be served on Comcast Cable, identified in the order as the internet service provider, and would seek the true name and address of the subscriber assigned the internet protocol address listed in Exhibit A to the complaint.

Ruling

The court found that Strike 3 had sufficiently shown good cause for the early discovery. It granted Strike 3’s motion and authorized service of a Rule 45 subpoena on Comcast Cable. The subpoena must include a copy of the order and a copy of the judge’s referenced prior decision.

If Comcast qualifies as a cable operator under 47 U.S.C. § 522(5), it must send John Doe a copy of the order as required by 47 U.S.C. § 551(c)(2)(B). Strike 3 must also ask Comcast to forward the order to the subscriber regardless of whether Comcast qualifies as a cable operator. If Comcast declines, Strike 3 must serve the order on John Doe at the same time as, or before, any other service or communication with John Doe. Strike 3 must file proof of its request or an affidavit stating that Comcast forwarded the order before Strike 3 attempts to serve or communicate with John Doe.

Limits on the Information and Further Proceedings

Strike 3 may use information obtained through the subpoena only to protect and enforce the rights asserted in its complaint. Without court permission, Strike 3 may not publicly disclose the information at least until John Doe has had an opportunity to seek permission to proceed anonymously or further discovery has occurred. References to John Doe’s identity must be redacted and filed under seal until further notice.

Before proceeding, Strike 3 must file an affidavit confirming that it proposed confidentiality to John Doe, along with relevant communications concerning any proposed confidentiality agreement. Comcast, and any other internet service provider receiving a subpoena under the order, must preserve subpoenaed information while any timely motion to dismiss is being resolved.

Judge Edward Chen stated that authorizing early discovery did not prevent John Doe from filing a motion to dismiss under Rule 12(b)(6), which challenges whether the complaint adequately states a claim, and did not prejudge such a motion. The court also reminded Strike 3 that, after learning John Doe’s name and address, it has an obligation under Rule 11 to determine whether to continue the lawsuit. The order addressed discovery and did not decide the underlying copyright-infringement allegations.