Strike 3 Holdings v. Doe subscriber assigned IP address: 68.129.200.26

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant, associated with Internet Protocol address 68.129.200.26, illegally downloaded and distributed Strike 3’s copyrighted films through the BitTorrent file-sharing network. Because Strike 3 did not know the defendant’s name or address, it asked for permission to serve a subpoena on Verizon Online LLC, the defendant’s internet service provider, before the parties held the conference normally required before discovery begins.

Strike 3 submitted declarations describing its “VXN Scan” system, a computer-forensics specialist’s conclusion that the IP address downloaded and shared Strike 3’s copyrighted material, and an employee’s confirmation that the torrented videos were materially identical to Strike 3’s copyrighted works.

Legal standard and analysis

Federal Rule of Civil Procedure 26(d)(1) generally prevents discovery before the parties’ required Rule 26(f) conference unless the court permits it. The court applied a flexible “reasonableness and good cause” standard and considered whether Strike 3 had made an initial showing of infringement, whether the subpoena was specific, whether other ways existed to obtain the information, whether the information was necessary to advance the case, and the defendant’s privacy expectation.

The court found that Strike 3 had made an initial showing of copyright infringement by showing ownership of valid copyrights and describing how it determined that the defendant’s IP address was used to download and share the works. It found the request specific because Strike 3 sought only the defendant’s name and address. The court also accepted that Verizon was the only identified source that could connect the IP address to the defendant’s identity and that Strike 3 could not serve the defendant or proceed with the case without that information.

The court recognized that identifying a person in a case involving alleged viewing and transmission of adult movies could cause embarrassment. It nevertheless found that internet-service subscribers have a minimal expectation of privacy in sharing copyrighted material and concluded that the order’s safeguards addressed concerns about identifying the wrong person or causing undue embarrassment.

Ruling and safeguards

Judge Henry J. Ricardo granted Strike 3’s Motion for Leave to Serve a Third-Party Subpoena. Strike 3 may serve Verizon with a Rule 45 subpoena seeking only the Doe subscriber’s name and current and/or permanent address. The subpoena may not seek additional information, such as an email address or telephone number, and must include the opinion and order and the attached notice to the defendant.

Verizon must notify the Doe defendant within 60 days after being served with the subpoena. The defendant then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to cancel or modify it, or to request permission to litigate anonymously. If the defendant challenges the subpoena, Verizon must not release the contact information until the court rules on the challenge. If no timely challenge is filed, Verizon has 10 additional days to provide the responsive information. Any information disclosed may be used only to protect Strike 3’s rights as described in its complaint.

The order closed Docket Number 7 and marked it “GRANTED.” It authorized early discovery and did not decide whether the Doe defendant ultimately infringed Strike 3’s copyrights.