Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 76.102.141.36

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant associated with Comcast Cable IP address 76.102.141.36 used BitTorrent to download and distribute Strike 3’s copyrighted adult motion pictures. Strike 3 said its detection system made direct connections with the IP address, downloaded files containing copies of its movies, and confirmed the files through BitTorrent identification data. Strike 3 alleged that the defendant infringed 37 movies over an extended period and that Strike 3 had not authorized the distribution.

Strike 3 filed one copyright-infringement claim and then sought permission to conduct discovery before the parties’ usual initial discovery conference. It requested permission under Federal Rule of Civil Procedure 45 to subpoena Comcast for the true name and addresses of the individual or individuals associated with the IP address.

Good Cause for Early Discovery

The court applied the four-factor test used for early discovery to identify an unknown defendant. The plaintiff had to show that: (1) the Doe defendant was identified specifically enough to be a real person who could be sued in federal court; (2) the plaintiff had taken steps 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 allowing service of process.

The court found that Strike 3 satisfied each factor. The allegations identified a person who downloaded and distributed the movies through the specified IP address, and the alleged activity was traced to the Northern District of California. The court said the IP address itself was not enough to identify the defendant. It also concluded that Strike 3 had adequately alleged a preliminary copyright-infringement claim by asserting ownership of the movies and unauthorized copying and distribution. Finally, the court accepted Strike 3’s allegation that Comcast could identify the person through the IP address.

Protective Order

The court recognized that the subscriber might not be the person who infringed the copyrights and that the allegations involved sensitive personal matters. It therefore issued a limited protective order. Strike 3 could not publicly disclose information Comcast provided until the Doe defendant had an opportunity to ask to proceed anonymously and the court ruled on that request.

If the Doe defendant did not file an anonymity motion within 30 days after the information was disclosed to Strike 3’s counsel, the limited protection would expire. If the defendant included identifying information in an anonymity request, the court ordered that the relevant papers be filed under seal while it considered the request.

Order

The court granted Strike 3’s 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 subpoena had to include a copy of the order. Comcast had 30 days after service to notify the Doe defendant. The Doe defendant then had 30 days after service to contest the subpoena, including by moving to quash or modify it. If no timely challenge was filed, Comcast had 10 days to produce responsive information.

The subpoenaed entity had to preserve the information while any timely motion to quash was resolved. The internet provider could not charge in advance, and any claimed production costs had to be supported by billing and cost summaries. Information disclosed in response to the subpoena could be used only to protect Strike 3’s rights described in the complaint. Judge Laurel Beeler signed the order as a United States magistrate judge.