Strike 3 Holdings v. John Doe subscriber assigned IP address 192.184.165.204

Background

Strike 3 Holdings, LLC alleged that an unidentified defendant using IP address 192.184.165.204 infringed Strike 3’s copyrights in 62 adult motion pictures over an extended period. Strike 3 stated that it had been unable to identify the individual associated with the IP address through its own efforts. It asked for permission to serve a Rule 45 subpoena on Sonic.net, LLC, the internet service provider associated with the Doe defendant, to obtain identifying information.

Court’s analysis

The court explained that Rule 26(d) of the Federal Rules of Civil Procedure permits early discovery before the parties’ required initial conference when it is convenient for the parties and witnesses and serves the interests of justice. The court applied a four-part test for determining whether there was good cause to identify an unknown defendant through early discovery. The plaintiff had to show that: (1) the Doe defendant was identified specifically enough to establish that the person was a real person who could be sued in federal court; (2) the plaintiff had described its efforts to locate and identify the person; (3) the complaint could withstand a motion to dismiss; and (4) the requested discovery was reasonably likely to produce information permitting service of process.

The court found that Strike 3 made a sufficient showing under all four factors. It therefore found good cause to allow early discovery through a third-party subpoena to Sonic.net. The court also issued a limited protective order because the ISP subscriber might be an innocent third party and the case involved sensitive and personal matters. Strike 3 could not publicly disclose information obtained through the subpoena until Doe had an opportunity to ask to proceed anonymously and the court ruled on that request. If Doe did not file such a request within 30 days after Strike 3’s counsel received the information, the limited protective order would expire. The court also stated that identifying information included in a request to proceed anonymously could be filed under seal.

Ruling

Judge Edward M. Chen granted Strike 3 Holdings’s ex parte motion for expedited discovery. The order allowed Strike 3 to immediately serve Sonic.net with a Rule 45 subpoena seeking Doe’s true name and addresses, with a copy of the order attached. Sonic.net had to notify Doe within 30 days after service. Doe then had 30 days after receiving notice to file a motion challenging the subpoena, including a motion to cancel or modify it. Sonic.net had to preserve responsive information while a timely challenge was pending, confer with Strike 3 about production costs, and could not charge those costs in advance of providing the requested information. Strike 3 could use information produced in response to the subpoena only to protect the rights asserted in its complaint. The order disposed of Docket No. 7. It did not decide whether Doe infringed Strike 3’s copyrights.