Strike 3 Holdings v. John Doe subscriber assigned IP address 71.198.226.238

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures and that the unidentified defendant used an internet-connected device and BitTorrent to download and distribute copies without authorization. Strike 3 connected the alleged activity to IP address 71.198.226.238. It alleged that MaxMind’s geolocation tool identified Comcast Cable Communications LLC as the internet service provider associated with that address and that Comcast could identify the subscriber by its records.

Strike 3 filed an ex parte application—an application made without an opposing party’s participation—for permission to serve Comcast with a subpoena before the parties’ required discovery conference under Federal Rule of Civil Procedure 26(f). The proposed subpoena sought only the name and physical address of the person associated with the Comcast account for the specified IP address. The defendant had not yet been identified or served, so no opposition was filed.

Early Discovery

Rule 26(d)(1) generally prevents a party from seeking discovery before the Rule 26(f) conference, but allows a court to authorize earlier discovery. The court applied the good-cause standard, weighing the need for expedited discovery against potential prejudice to the responding party. It also considered factors addressing whether the defendant was likely a real person subject to suit, the efforts made to identify the defendant, whether the complaint could withstand a motion to dismiss, and whether the subpoena was likely to produce identifying information.

The court found that all four factors favored Strike 3. It found that the allegations made it reasonably plausible that an identifiable person had downloaded and distributed the films through BitTorrent. It also found that Strike 3 described sufficient efforts to identify the defendant and that the IP address alone was not enough to do so. The court concluded that the complaint sufficiently alleged a basic copyright-infringement claim for purposes of allowing discovery.

The court further found that Comcast was likely to possess the information needed to identify the subscriber and that the subpoena was narrow. It determined that the need to identify the defendant and allow the case to proceed outweighed the burden or prejudice to Comcast. The court expressly stated that it was not deciding the ultimate merits of the copyright case.

Protective Order

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

The court therefore issued a limited protective order on its own motion. Any information Comcast produces in response to the subpoena must be treated as confidential under the restrictions applicable to material designated “Confidential” in the Northern District of California’s Model Protective Order for Standard Litigation. That treatment continues until the court rules on a motion by the defendant or another affected third party seeking continued confidentiality or permission to proceed anonymously.

The order also provides that, if the defendant or another identified third party 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 protective order. Notice must include or attach the court’s order. If an anonymity request contains identifying information, the related papers may be filed under seal while the court considers the request.

Disposition

The court GRANTED Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena on Comcast and ISSUED a limited protective order under Rule 26(c). The order did not enter judgment on the copyright-infringement allegations or determine whether the Comcast subscriber was the person who committed the alleged infringement.