Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 172.9.237.127

Background

Strike 3 Holdings, LLC asked for permission to serve a subpoena on AT&T Internet before the parties held the conference required by Federal Rule of Civil Procedure 26(f). AT&T was identified as the internet service provider for the subscriber assigned internet-protocol address 172.9.237.127. The defendant was identified in the case caption as John Doe Subscriber Assigned IP Address 172.9.237.127.

Court’s Analysis

The court found that Strike 3 had shown good cause for early third-party discovery. It determined that Strike 3 had: (1) identified the defendant specifically enough for the court to determine that the defendant was a real person or entity who could be sued in federal court; (2) described steps already taken to locate the defendant; (3) shown that its lawsuit could withstand a motion to dismiss; and (4) shown a reasonable likelihood that discovery could identify the defendant so that service of process would be possible.

The court also stated that Strike 3’s application indicated compliance with the copyright-registration requirements in 17 U.S.C. § 411(a). At the same time, the court cited Ninth Circuit authority explaining that a bare allegation 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. The court nevertheless concluded that, at this stage and on the record presented, Strike 3 could use limited discovery to determine the defendant’s identity.

Order

The court granted Strike 3’s motion for leave to serve the subpoena. Strike 3 may serve AT&T with a subpoena under Federal Rule of Civil Procedure 45 requiring AT&T to provide the subscriber’s true name and address, and must attach the order to the subpoena.

AT&T must provide the subscriber with copies of the subpoena and order within 30 days after the subpoena is served on AT&T. AT&T may use reasonable methods to provide that notice, including first-class mail or overnight service to the subscriber’s last known address. AT&T may object to the subpoena and may seek a protective order.

Strike 3 may use information produced in response to the subpoena only to protect and enforce the rights described in its complaint. If AT&T provides the subscriber’s identity, Strike 3 may not publicly disclose that information without the subscriber’s consent or permission from the court. The order was issued by United States Magistrate Judge Virginia K. DeMarchi.