Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 76.226.68.255

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 an unidentified defendant, identified in the complaint only through Internet Protocol address 76.226.68.255, used the BitTorrent file-sharing network to download and distribute copies of 30 of Strike 3’s movies without authorization.

Strike 3 said its investigative tool, VXN Scan, connected with the device using the specified Internet Protocol address and obtained information that allegedly linked the device to copies of Strike 3’s works. Strike 3 also said that MaxMind’s geolocation tool traced the address to a physical address in the Northern District of California and identified AT&T Internet as the Internet service provider associated with the address.

Strike 3 applied for permission to serve AT&T Internet with a third-party subpoena before the parties’ required discovery conference. The proposed subpoena sought only the name and physical address of the person associated with the Internet account for the specified address. The Doe defendant had not yet been identified or served, and therefore did not oppose the application.

Early Discovery

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the Rule 26(f) conference, but permits a court to authorize earlier discovery. The court applied the good-cause standard, which asks whether the need for expedited discovery outweighs the prejudice to the responding party.

The court found that all four relevant factors favored the request. It concluded that Strike 3 had alleged enough facts to suggest that Doe was a real person who could be sued in federal court; had described efforts to identify Doe; had pleaded a copyright-infringement claim that could withstand a motion to dismiss at this stage; and had shown that AT&T Internet was likely to possess information identifying the subscriber.

The court emphasized that it was not deciding the ultimate merits of the copyright claim. It found only that Strike 3 had pleaded a prima facie case sufficient for purposes of the early-discovery request. The court also found that the proposed discovery was narrow, that Strike 3 needed it to identify and serve the defendant, and that the need for the discovery outweighed the burden on AT&T Internet.

Protective Order

The court found good cause for a limited protective order under Federal Rule of Civil Procedure 26(c). It reasoned that the allegations involved sensitive and highly personal subject matter and that the information produced by AT&T Internet might identify an innocent third party rather than the alleged infringer.

The order requires information produced in response to the subpoena to be treated as confidential under the restrictions applicable to material designated “Confidential” under 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 states that Doe or another identified third party may file a motion to proceed anonymously within 30 days after receiving notice that AT&T Internet produced the information. Any notice from Strike 3 must include or attach the order. If identifying information is included in a request to proceed anonymously, the request must be filed under seal until the court has an opportunity to rule on it.

Disposition

Judge Peter H. Kang granted Strike 3’s ex parte application for leave to serve the limited, early third-party subpoena on AT&T Internet. The court also issued the limited protective order. The order did not enter judgment on the copyright-infringement allegations or determine whether the subscriber was the alleged infringer.