Strike 3 Holdings v. John Doe Subscriber Assigned IP Address 73.252.135.137

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures and that John Doe, identified in the complaint only by Internet Protocol (IP) address 73.252.135.137, used BitTorrent to download and distribute copies of those works without authorization. Strike 3 alleged that its investigative tools connected the IP address to activity involving the works and that Comcast Cable Communications LLC was the Internet service provider associated with the address.

Strike 3 filed an ex parte application for permission to serve Comcast with a third-party subpoena before the parties’ required discovery conference under Federal Rule of Civil Procedure 26(f). The requested subpoena was limited to the name and physical address of the person associated with the account for the specified IP address. Doe had not yet been identified or served, so no opposition was filed.

Early Discovery

Rule 26 generally bars discovery before the Rule 26(f) conference, but the court may permit earlier discovery for good cause. Applying factors concerning the specificity of the Doe defendant, Strike 3’s identification efforts, the sufficiency of its complaint, and whether the discovery was likely to produce identifying information, the court found all four factors favored the request.

The court concluded that Strike 3’s allegations were sufficient at this stage to withstand a motion to dismiss and establish a prima facie copyright-infringement claim. The court emphasized that this conclusion was not a judgment on the ultimate merits. It also found that the subpoena’s narrow scope, purpose, and likely burden supported early discovery, and that Comcast was likely to possess information linking the IP address to a subscriber.

Protective Order

The court found good cause to protect the privacy of the person Comcast identifies, whether that person is Doe or an innocent third party who paid for the Internet service. The court cited the sensitive and personal nature of the allegations involving adult motion pictures and the possibility that the subscriber might not be the alleged infringer.

The court therefore ordered that information Comcast produces in response to the subpoena be treated as confidential under the restrictions applicable to “Confidential” material in the Northern District of California’s Model Protective Order for Standard Litigation. That treatment continues while Doe or another affected third party has an opportunity to seek anonymous participation and the court rules on that request. If the person does not file a motion to proceed anonymously within thirty days after receiving notice that Comcast produced the information, Strike 3 may seek withdrawal or modification of the limited protective order. Any notice from Strike 3 must include or attach the court’s order. The court also stated that papers containing identifying information in a request to proceed anonymously may be filed under seal until the court rules on the request.

Disposition

The court GRANTED Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena on Comcast before the Rule 26(f) conference and ISSUED the limited protective order. The order resolved Docket 8. It did not determine whether Doe infringed Strike 3’s copyrights or identify who used the IP address.