Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 24.6.36.71

Background

Strike 3 Holdings, LLC sued an unidentified defendant identified in the caption by the internet protocol address 24.6.36.71. Strike 3 asserted one claim for direct copyright infringement and sought an injunction and statutory damages. It alleged that the defendant used BitTorrent to download and distribute about 34 media files covered by Strike 3’s copyrights.

Strike 3 asked for permission to serve a subpoena on non-party Comcast Cable Communications, LLC before the parties’ required conference about managing the case. Strike 3 sought the subscriber’s true name and address because it represented that the internet service provider was the entity able to connect the internet protocol address to its subscriber.

Early-Discovery Standard

The court explained that Federal Rule of Civil Procedure 26(d) permits early discovery before the case-management conference when it is convenient for the parties and witnesses and serves the interests of justice. Courts in the Ninth Circuit generally require “good cause,” meaning that the need for expedited discovery must outweigh the prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery:

Court’s Analysis

The court found that Strike 3 satisfied all four factors. First, based on the complaint’s allegations about BitTorrent and Strike 3’s use of geolocation technology, the court found enough information to determine that the unidentified defendant was a real person who could potentially be sued in federal court.

Second, the court noted Strike 3’s use of infringement-detection and geolocation technology, web searches, computer investigators, and cybersecurity consultants to try to identify the defendant.

Third, the court found that the complaint could preliminarily withstand a motion to dismiss. A direct copyright-infringement claim requires ownership of the allegedly infringed material and a showing that the alleged infringer violated at least one exclusive right held by copyright owners. The court accepted Strike 3’s allegations as true for this limited purpose and found that the complaint alleged ownership and unauthorized downloading, copying, and distribution.

Fourth, the court found that Comcast was reasonably likely to have information identifying the subscriber connected to the internet protocol address.

Protective Order and Conditions

The court also found good cause for limited protective measures because the subscriber could be innocent and could face undue prejudice if identified publicly. The court noted that Strike 3 did not oppose procedural safeguards protecting privacy.

The order permits Strike 3, within 21 days, to serve Comcast with a subpoena under Federal Rule of Civil Procedure 45 for the defendant’s true name and address. Strike 3 must attach the order to the subpoena. If another service provider is identified in response, Strike 3 may serve that provider in the same manner. If Comcast qualifies as a cable operator under the cited federal statute, it must send the defendant a copy of the order.

Comcast must serve the Doe subscriber with the subpoena and the order within 30 days after being served by Strike 3. The subscriber then has 30 days to challenge the subpoena, including by asking the court to cancel or modify it. The subscriber may also request to proceed under a pseudonym and ask that identifying information be filed under seal. If the subscriber does not challenge the subpoena within 30 days, Comcast may produce the responsive information within 10 days.

Strike 3 may use information disclosed through the subpoena only to protect and enforce the rights asserted in the complaint. It may not publicly disclose the information without the court’s permission, and references to the subscriber’s identity must be redacted and filed under seal until further notice. Internet service providers must preserve subpoenaed information while any timely motion to dismiss is pending.

Disposition

Judge Araceli Martinez-Olguin granted Strike 3’s ex parte application for leave to serve the third-party subpoena and issued the protective order with the stated conditions. The order authorized early discovery; it did not decide whether the Doe subscriber actually infringed Strike 3’s copyrights.