Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.241.1.145

Background

Strike 3 alleged that it owns copyrights registered with the U.S. Copyright Office for certain adult motion pictures. It alleged that the unidentified defendant, associated with Internet Protocol address 73.241.1.145, used BitTorrent to download and distribute copies of those movies without authorization. Strike 3 said its investigative technology connected with the device using that IP address and obtained information indicating that copyrighted files were being shared.

Strike 3 alleged that MaxMind’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 asked for permission to serve Comcast with a subpoena before the parties’ required discovery 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

Federal Rule of Civil Procedure 26(d)(1) generally prevents discovery before the parties’ Rule 26(f) conference, but permits a court to authorize earlier discovery. The court applied a good-cause standard, weighing the need for expedited discovery against possible prejudice and considering factors concerning the request’s purpose, scope, burden, and timing.

The court also applied factors used for discovery aimed at identifying an unknown defendant. It found that Strike 3 had sufficiently alleged that the defendant was likely a real person who could be sued in federal court; described its efforts to identify the person; pleaded a copyright-infringement claim that could withstand a motion to dismiss; and shown that Comcast was likely to have information identifying the subscriber.

The court stated that Strike 3’s complaint established a prima facie, or initially sufficient, copyright-infringement case, but expressly said it was not deciding the ultimate merits. The court found that the proposed discovery was narrow, that Comcast’s burden appeared limited, and that identifying the defendant was necessary for the case to proceed. It therefore found good cause and granted leave to serve the subpoena before the Rule 26(f) conference.

Protective Order

The court found good cause for a limited protective order because the subpoena could identify either the defendant or an innocent third party who paid for the internet service. It reasoned that allegations involving adult motion pictures could cause annoyance, embarrassment, and privacy concerns.

The order requires all information Comcast produces in response to the subpoena to be treated as confidential under the restrictions applicable to “Confidential” material in the Northern District of California’s Model Protective Order for Standard Litigation. The confidential treatment continues until the person identified by Comcast has an opportunity to ask to proceed anonymously and the court rules on that request.

If the identified person does not file a request to proceed anonymously within 30 days after receiving notice from Strike 3 that Comcast produced the information, Strike 3 may seek withdrawal or modification of the confidentiality protection. Any notice must include a copy of the order. If a request to proceed anonymously includes identifying information, the court stated that the papers may be filed under seal until it rules 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 and issued a limited protective order. The order did not determine whether the unidentified defendant infringed Strike 3’s copyrights.