Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that “John Doe,” identified only by IP address 68.129.128.238, downloaded and distributed Strike 3’s copyrighted movies in violation of the Copyright Act. Strike 3 sought permission to serve a third-party subpoena on Verizon Online LLC, the internet service provider associated with the IP address, to obtain Doe’s name and address, investigate the alleged infringement, and serve the complaint.

Court’s analysis

The court applied the standard used for expedited discovery—discovery allowed before the normal discovery period when there is good cause. It considered whether Strike 3 had made a preliminary showing of an actionable claim, whether the request was specific, whether another way existed to obtain the information, whether the information was needed to advance the case, and Doe’s privacy interest.

The court found that Strike 3 had made a preliminary showing of copyright infringement by describing its original copyrighted works and providing details about the alleged infringement, including dates, times, and locations. It also found that the request was limited to the subscriber’s name and address, that Strike 3 had no reasonable alternative to the subpoena, and that the information was needed to serve Doe and pursue the case. The court acknowledged that the allegations involved viewing and distributing adult movies but found that internet subscribers have a limited privacy expectation in transmitting or distributing copyrighted material. The court stated that the protective order would address some privacy concerns.

Ruling and procedures

The court granted Strike 3’s motion for leave to serve a third-party subpoena on Verizon Online LLC for Doe’s name and address. Strike 3 must attach the order and the “Notice to Defendant” to the subpoena. It may not subpoena Doe’s phone number or email address.

The court ordered that Doe may proceed anonymously unless the court orders otherwise. Strike 3 may not begin settlement discussions before serving the complaint without the court’s permission, although it may participate if Doe initiates those discussions.

The internet provider has 60 days after being served to notify Doe and provide the subpoena, the order, and the notice. Doe then has 60 days after receiving those materials to file a motion challenging the subpoena, including a motion to quash or modify it. The provider may not disclose identifying information before that period ends, or while a timely challenge is pending. If no challenge is filed, the provider has 10 days after the 60-day period to produce the subpoenaed information. The provider must preserve the information, confer with Strike 3 about production costs, and may not charge in advance.

Any information disclosed may be used only to protect Strike 3’s rights described in the complaint. Strike 3’s time to serve the summons and complaint was extended to 45 days after receiving the information from the provider. Strike 3 must also submit a letter of no more than two pages every 60 days describing its efforts to obtain the information and serve Doe, until Doe answers or otherwise responds. The court warned that failing to submit those letters on time may result in dismissal for failure to prosecute.

This order addressed discovery and case-management procedures. It did not decide whether Doe actually infringed Strike 3’s copyrights.