Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.162.216.96

Background

Strike 3 Holdings, LLC asked for permission to serve Comcast Cable with a subpoena before the parties’ Rule 26(f) conference. Comcast was identified as the internet service provider for the subscriber assigned IP address 73.162.216.96. Strike 3 sought the subscriber’s true name and address so it could identify the defendant.

The court noted that Strike 3 had shown four things supporting early discovery: it had identified the possible defendant specifically enough for the court to determine that the defendant could be sued in federal court; it had taken earlier steps to locate the defendant; its lawsuit could withstand a motion to dismiss; and there was a reasonable likelihood that discovery would identify the defendant so service of process could occur. The court also noted that Strike 3 had satisfied the copyright-registration requirement for starting its lawsuit.

The court cautioned that, after learning the subscriber’s identity, Strike 3 could not rely only on an allegation that the subscriber was registered to the IP address associated with infringing activity to state a plausible direct or contributory copyright-infringement claim. The court nevertheless found that limited discovery to determine the defendant’s identity was proper at this stage.

Ruling

The court granted Strike 3’s application. Strike 3 may serve Comcast with a subpoena under Rule 45 seeking the true name and address of the subscriber assigned IP address 73.162.216.96, and must attach the order to the subpoena.

Comcast must provide the subscriber with copies of the subpoena and order within 30 days after the subpoena is served on Comcast. Comcast may use reasonable methods, including first-class mail or overnight service to the subscriber’s last known address.

Strike 3 may use information obtained through the subpoena only to protect and enforce the rights described in its complaint. Comcast may object to the subpoena or seek a protective order. If Comcast gives Strike 3 information identifying the subscriber, Strike 3 may not publicly disclose it without the subscriber’s consent or permission from the court.

Judge Virginia K. Demarchi signed the order as a United States Magistrate Judge. The order addressed only the requested early discovery and did not decide whether the subscriber committed copyright infringement.