Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.248.212.37

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with IP address 98.248.212.37 infringed Strike 3’s copyrights in 29 adult motion pictures over an extended period. Strike 3 said it had been unable to identify the individual through its own efforts. It therefore asked for permission to serve a Rule 45 subpoena on Comcast, the defendant’s internet service provider, seeking the person’s identity.

Court’s analysis

The court explained that Federal Rule of Civil Procedure 26(d) permits early discovery before the parties’ required discovery conference when there is good cause. Courts generally weigh the need for expedited discovery against potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified the person with enough specificity to show that the person could be sued in federal court; whether the plaintiff described its efforts to locate and identify the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of the lawsuit. The court found that Strike 3 satisfied all four factors.

Because the internet subscriber might be an innocent third party and the case involved sensitive personal matters, the court also issued a limited protective order. Information Comcast provided to Strike 3 had to be treated as confidential. Strike 3 could not publicly disclose it until the subscriber had an opportunity to ask to proceed anonymously and the court ruled on that request. If the subscriber did not file that request within 30 days after the information was disclosed to Strike 3’s counsel, the limited protective order would expire. The court also allowed identifying information included in an anonymity request to be filed under seal while the request was pending.

Ruling and requirements

Judge Edward M. Chen granted Strike 3 Holdings’ ex parte motion for expedited discovery. Strike 3 could immediately serve Comcast with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and the order had to accompany the subpoena.

Comcast had 30 days after service to provide the subscriber with the subpoena and the order. The subscriber then had 30 days after receiving them to file a motion challenging the subpoena, including a motion to cancel or change it. The subpoenaed entity had to preserve the requested information while any timely challenge was pending. Comcast also had to confer with Strike 3 before production, could not charge production costs in advance, and had to provide billing information for any costs it claimed. Strike 3 could use information disclosed in response to the subpoena only to protect the rights asserted in its complaint.

The order disposed of Docket No. 7. It authorized discovery and protective measures; it did not decide whether the Doe defendant infringed Strike 3’s copyrights.