Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 99.149.254.38

Background

Strike 3 Holdings, LLC asked for permission to serve a third-party subpoena before the parties’ conference required by Federal Rule of Civil Procedure 26(f). The requested subpoena would be directed to AT&T U-verse, identified as the internet service provider, and would seek the true name and address of the defendant associated with IP address 99.149.254.38.

The order does not decide whether the person associated with that IP address infringed Strike 3’s copyright. It notes that an internet subscriber may not be the individual who allegedly infringed the copyright and that the complaint involved allegations of illegally downloading adult motion pictures.

Ruling on the Subpoena

The court granted Strike 3’s ex parte application for leave to serve the subpoena before the Rule 26(f) conference. It found that Strike 3 had shown “good cause” under Federal Rule of Civil Procedure 45. The subpoena could require AT&T U-verse to provide the defendant’s true name and address, and Strike 3 had to attach a copy of the order to the subpoena.

Strike 3 could also serve a similar subpoena on another internet service provider identified in response to a subpoena as providing internet services to the defendant.

Notice and Challenges

If the internet service provider qualified as a cable operator under 47 U.S.C. § 522(5), the provider had to follow 47 U.S.C. § 551(c)(2)(B) by notifying the subscriber of the court order through the person to whom the order was directed. More generally, each provider had 30 days after service to give each affected subscriber a copy of the subpoena and the order, using any reasonable method, including mail or overnight delivery to the subscriber’s last known address.

Each subscriber and each provider had 30 days after service to file a motion contesting the subpoena, including a motion to cancel or change it. If no challenge was filed within that period, the provider would have 10 days to produce the responsive information for that subscriber.

Protective Order and Disposition

The court also issued a limited protective order under Federal Rule of Civil Procedure 26(c). Any name or other identifying information released to Strike 3 had to be treated as confidential and could not be publicly disclosed until the defendant had an opportunity to request permission to proceed anonymously and the court ruled on that request. If the defendant did not file that request within 30 days after the information was disclosed, the limited protective order would expire.

The court therefore granted the application for early third-party discovery and imposed the stated notice, challenge, use, and confidentiality conditions.