Strike 3 Holdings v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe illegally downloaded and distributed Strike 3’s copyrighted videos through BitTorrent. Strike 3 said its monitoring system, VXN Scan, detected the alleged activity and that it had identified the user only through IP address 98.15.73.88. Strike 3 therefore asked for permission to serve Spectrum, the internet service provider, with a subpoena seeking the subscriber’s name and address.

The request was made before the parties’ required conference about managing discovery. Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before that conference unless the court permits it. Strike 3 asked for expedited discovery—discovery allowed earlier than usual—and sought the order without first notifying John Doe.

Court’s analysis

Judge Cave applied five factors governing early discovery: whether the plaintiff showed a plausible claim of harm, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and the defendant’s privacy interest.

The court found that all five factors favored Strike 3. First, Strike 3 alleged ownership of valid copyrights registered with the Copyright Office and submitted declarations and forensic evidence supporting its allegations that Doe downloaded and distributed the videos without authorization. Second, the subpoena was limited to Doe’s name and address. Third, the court found that Spectrum was the only entity able to connect the IP address to the subscriber’s identity. Fourth, the information was needed to serve Doe with the summons and complaint. Fifth, the court found that an internet subscriber has a limited expectation of privacy in sharing copyrighted material and that Strike 3’s need for the information outweighed that interest.

Because the case involved adult content and the court identified a risk of mistaken identification, embarrassment, or other undue burden, the court found good cause for a protective order. It allowed the parties to meet and confer and submit a proposed protective order for the court’s consideration.

Order

The court granted Strike 3’s motion. Strike 3 may serve Spectrum with the subpoena to obtain John Doe’s true name and current address, but it may not request additional information such as an email address or telephone number. The subpoena must include the order and the attached notice to the defendant.

Spectrum has 60 days after receiving the subpoena to serve Doe with the subpoena, order, and notice. Doe then has 60 days from service of the subpoena to file a motion challenging it, including a motion to quash or modify it, or to request permission to litigate anonymously. If Doe contests the subpoena, Spectrum may not release the information to Strike 3 until the court rules on the challenge. If neither Doe nor Spectrum timely contests the subpoena, Spectrum has 10 additional days to provide the requested information.

Strike 3 may use information produced in response to the subpoena only to protect the rights asserted in its complaint. The order authorized early discovery; it did not determine whether Doe actually infringed Strike 3’s copyrights.