Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.170.121.42

Background

Strike 3 Holdings, LLC filed an ex parte application—an application considered without advance participation by the opposing party—for permission to serve a third-party subpoena before the parties’ Rule 26(f) conference. The subpoena would be directed to Comcast Cable, identified as the internet service provider, and would seek the true name and address of the defendant associated with the IP address listed in the complaint.

Ruling

The court found that Strike 3 Holdings had established good cause and granted its application. The order permits Strike 3 Holdings to serve Comcast with a subpoena under Federal Rule of Civil Procedure 45 seeking the defendant’s identifying information. It also permits a similar subpoena to any service provider identified in response to a subpoena as providing internet services to one of the defendants.

If the provider qualifies as a cable operator under 47 U.S.C. § 522(5), the order requires compliance with 47 U.S.C. § 551(c)(2)(B), including notifying the subscriber of the order. The provider must serve the subscriber with a copy of the subpoena and order within 30 days after service on the provider. The subscriber and provider each have 30 days after service to file a motion challenging the subpoena, including a motion to quash or modify it. If no timely challenge is filed, the provider has 10 days to produce the responsive information. The provider must preserve the information while any timely challenge is pending or until the information is delivered.

Limits on disclosure

Any name or other identifying information of a current or proposed defendant must be filed under seal. Strike 3 Holdings may use information obtained through the subpoena only to protect and enforce its rights as described in the complaint. This order addressed discovery needed to identify the defendant; it did not decide the merits of Strike 3 Holdings’ claims. Judge Thomas S. Hixson entered the order.