Strike 3 Holdings v. John Doe subscriber assigned IP address 67.188.114.248

Background

Strike 3 Holdings, LLC alleged that it owns copyrights registered with the U.S. Copyright Office for certain adult motion pictures. It alleged that Defendant John Doe, identified in the complaint by the IP address 67.188.114.248, used an internet-connected device and the BitTorrent peer-to-peer network to download and distribute copies of Strike 3’s copyrighted motion pictures without authorization. Strike 3 alleged that its VXN Scan technology connected with the device, obtained torrent-related information, and downloaded portions of the same digital media files to compare them with Strike 3’s works.

Strike 3 alleged that MaxMind, Inc.’s geolocation tool traced 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 sought permission under Federal Rule of Civil Procedure 26(d)(1) to serve Comcast with a subpoena under Rule 45 before the parties’ required Rule 26(f) conference. The proposed subpoena sought only the name and physical address of the person whose Comcast account was associated with the IP address.

Early Discovery

The court explained that early discovery may be allowed when the requesting party shows “good cause,” meaning that the need for expedited discovery outweighs prejudice to the responding party. Applying factors from prior decisions, the court considered whether Strike 3 identified Doe with enough specificity, whether it had taken reasonable steps to identify Doe, whether the complaint could withstand a motion to dismiss, and whether the subpoena was likely to produce information that would identify Doe and permit service.

The court found that all four factors favored early discovery. It concluded that Strike 3’s allegations made it reasonably likely that Doe was an identifiable person who could be sued in federal court. It found Strike 3’s efforts to identify Doe sufficient, including its investigation and its showing that Comcast was the only entity able to connect the IP address to a subscriber.

The court also concluded that the complaint sufficiently pleaded copyright infringement for purposes of this discovery request. Strike 3 alleged ownership of the copyrights and alleged that Doe downloaded and distributed the works without authorization. The court expressly stated that it was not deciding the ultimate merits of the case. Finally, the court found that Comcast likely possessed the subscriber’s name and physical address and that the narrow subpoena was likely to produce identifying information.

Protective Order

The court separately considered privacy protections under Rule 26(c), which permits a protective order for good cause to prevent annoyance, embarrassment, oppression, or undue burden or expense. The court found good cause because the allegations concerned adult motion pictures and because the Comcast subscriber might be an innocent third party rather than the person who allegedly committed the infringement.

The court ordered that information Comcast produces in response to the subpoena must be treated as confidential under the restrictions applicable to “Confidential” material in the Northern District of California’s Model Protective Order for Standard Litigation. That treatment continues until the court rules on a motion by Doe or another affected third party seeking continued confidentiality or permission to proceed anonymously. The order also requires notice to the affected person and a copy of the order. If the person does not file a motion to proceed anonymously within thirty days after receiving notice that Comcast produced the information, Strike 3 may seek withdrawal or modification of the protection, as described in the order. Papers containing identifying information in such a motion may be filed under seal until the court can rule on the request.

Disposition

The court GRANTED Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena on Comcast, restricted to the specified identifying information. The court also ISSUED a limited protective order under Rule 26(c). The order did not decide whether Defendant Doe infringed Strike 3’s copyrights.