Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.223.6.126

Background

Strike 3 Holdings, LLC asked for permission to serve Comcast Cable Communications, LLC with a subpoena before the parties held the conference normally required by Federal Rule of Civil Procedure 26(f). Comcast is the internet service provider associated with the subscriber assigned internet protocol address 73.223.6.126. Strike 3 sought the subscriber’s true name and address so it could identify the defendant.

Court’s reasoning

The court found good cause for early third-party discovery. It concluded that Strike 3 had shown: (1) enough identifying information for the court to determine that the defendant was a real person or entity that could be sued in federal court; (2) earlier efforts to locate the defendant; (3) that the action could withstand a motion to dismiss; and (4) a reasonable likelihood that discovery would identify the defendant so service of process could occur. The court also noted Strike 3’s representation that it had satisfied the copyright-registration requirements for bringing the lawsuit.

The court cautioned that merely alleging that someone is the registered subscriber for an internet protocol address associated with infringing activity is not enough, by itself, to state a plausible claim for direct or contributory copyright infringement. Nevertheless, based on the record at this stage, the court allowed limited discovery to determine the defendant’s identity. The order did not decide whether the subscriber committed copyright infringement.

Order

The court granted Strike 3’s ex parte motion, meaning a motion decided without advance participation by the opposing party at that stage. Strike 3 may serve Comcast with a Rule 45 subpoena commanding Comcast to provide the subscriber’s true name and address, and Strike 3 must attach the order to the subpoena.

Comcast must serve the subscriber with copies of the subpoena and order within 30 days after the subpoena is served on Comcast. Comcast may use any reasonable method, including first-class mail or overnight service to the subscriber’s last known address. Strike 3 may use the disclosed information only to protect and enforce the rights described in its complaint. Comcast may object to the subpoena or seek a protective order. If Comcast provides the subscriber’s identity, Strike 3 may not publicly disclose it without the subscriber’s consent or permission from the court.