Strike 3 Holdings v. John Doe subscriber assigned IP address 73.222.114.216

Background

Strike 3 Holdings, LLC sued an unidentified defendant whom it alleged used BitTorrent to distribute 27 of Strike 3’s copyrighted films without authorization. Strike 3 identified an Internet Protocol (IP) address associated with the alleged activity, but it could not determine the account owner. It sought permission to issue an early third-party subpoena to Comcast Cable, the internet service provider associated with the IP address, before the parties’ required Rule 26(f) conference.

The court noted concerns about Strike 3’s pattern of filing similar cases and the possibility that people could feel pressured to settle because the allegations involved pornography. The court also recognized that an IP address may be used by multiple people and that being the account holder does not itself establish infringement. Those concerns, however, did not prevent the requested discovery at this stage.

Legal standard and ruling

The court applied the Ninth Circuit’s “good cause” standard for early discovery. It considered whether Strike 3 had identified the unknown defendant with enough specificity, described its efforts to find the defendant, shown that the complaint could withstand dismissal, and shown that the subpoena was reasonably likely to produce information allowing service of process. The court found that Strike 3 satisfied those requirements and concluded that denying permission would be an abuse of discretion under the governing case law.

The court therefore granted Strike 3’s motion and authorized it to serve a Rule 45 subpoena on Comcast Cable seeking the defendant’s true name and address. Strike 3 could also issue a similar subpoena to another internet service provider identified through the subpoena response.

Protective measures

The order required the provider to send the subscriber a copy of the order if applicable, and required Strike 3 to request that the provider do so regardless of whether the provider qualified as a cable operator. If the provider declined, Strike 3 had to serve the order on the defendant before or at the same time as any other communication, or file an affidavit confirming that the provider had already forwarded it.

Strike 3 could use the subpoenaed information only to protect and enforce the rights asserted in its complaint. It could not publicly disclose the information without further court permission at least until the defendant had an opportunity to seek permission to proceed anonymously or further discovery occurred. References to the defendant’s identity had to be redacted and filed under seal. Before serving the subpoena, Strike 3 also had to file an affidavit confirming that it had proposed a confidentiality agreement to the defendant. The providers had to preserve subpoenaed information while any timely motion to dismiss was pending.

Effect of the order

This order addressed discovery needed to identify the defendant. It did not decide whether the defendant actually shared Strike 3’s films, whether copyright infringement occurred, or whether Strike 3 would ultimately prevail. Chief Judge Richard Seeborg granted the motion subject to the stated notice, confidentiality, sealing, and use restrictions.