Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued “John Doe,” who was identified only by Internet Protocol address 68.197.142.28. Strike 3 alleged that Doe downloaded, copied, and distributed its copyrighted works in violation of the Copyright Act. Because Strike 3 did not know Doe’s name, it asked for permission to serve a third-party subpoena on Doe’s internet service provider, CSC Holdings LLC (Optum Online), to obtain Doe’s true name and address, investigate the alleged infringement, and serve the lawsuit.

Expedited Discovery

The court applied a flexible good-cause standard for expedited discovery, meaning discovery allowed before the usual time. The court considered whether Strike 3 had made an initial showing of actionable harm, whether the request was specific, whether other methods could provide the information, whether the information was needed to pursue the case, and Doe’s privacy expectations.

The court found that Strike 3 had made an initial showing of copyright infringement by describing its original copyrighted works and providing detailed information about the alleged infringement, including dates, times, and locations. The court also found that the request was narrowly limited to Doe’s true name and address, that Strike 3 had no reasonable alternative for obtaining that information, and that the information was needed to serve Doe and continue the litigation. The court recognized that identification in a case involving adult movies could cause embarrassment but found that internet subscribers have a minimal privacy expectation in the transmission or distribution of copyrighted material.

Ruling and Protective Order

The court granted Strike 3’s motion for leave to serve the subpoena. The subpoena may seek only Doe’s true name and address—not Doe’s phone number or email address. Strike 3 must include the court’s order and the attached notice to Doe with the subpoena.

The court also ordered that Doe may proceed anonymously unless the court orders otherwise. Strike 3 may not begin settlement discussions before serving the Complaint unless the court gives permission, although Strike 3 may participate if Doe initiates settlement discussions.

The internet service provider must give Doe notice of the subpoena and related materials within 60 days after receiving the subpoena. Doe then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to cancel or modify it. The provider may not disclose Doe’s identifying information before that period ends, or while a timely challenge remains unresolved. If no challenge is filed, the provider has 10 days after the 60-day period to produce the responsive information. The provider must preserve the information while any timely challenge is pending.

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 status letters to the court every 60 days until Doe answers or otherwise responds; the court warned that failing to submit them could result in dismissal for failure to prosecute. Judge Jessica G. L. Clarke directed the Clerk of Court to terminate the motion listed as ECF No. 6.