Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.93.49.244
- Richard Seeborg
- 3:23-cv-00263
- U.S. District Court · Northern District of California
- 7
In Strike 3 Holdings v. John Doe, Judge Seeborg granted permission to subpoena an internet provider for the defendant’s identity, with privacy protections.
Strike 3 Holdings, LLC may obtain identifying information about the anonymous defendant from Comcast Cable or another identified internet provider, but the defendant’s identity must receive notice and confidentiality protections.
What happened
Strike 3 Holdings, LLC sued an unidentified defendant, alleging that the defendant used BitTorrent to share 30 of Strike 3’s copyrighted films. Strike 3 identified an internet address but needed the internet provider’s records to learn the account owner’s name and address.
The court found good cause for early discovery and ruled that Strike 3 could subpoena Comcast Cable before the usual discovery conference. The court did not decide whether the defendant infringed copyright or whether the account owner was the person who shared the files.
Judge Seeborg granted the motion and imposed protections: the provider generally must notify the subscriber, the subscriber may remain anonymous, identity information must be sealed and redacted, and Strike 3 must first propose a confidentiality agreement.
The detailed version
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.93.49.244 · No. 3:23-cv-00263
- Richard Seeborg
- Feb. 24, 2023
Background
Strike 3 Holdings, LLC sued an unidentified defendant whom it described as the user associated with Internet Protocol address 73.93.49.244. Strike 3 alleged that specialized software identified that address as belonging to a BitTorrent user who distributed 30 of Strike 3’s copyrighted films without authorization. Strike 3 said it could not identify the account owner without a subpoena to the internet service provider associated with the address and that it had been unable to identify the person by other means.
Strike 3 asked for permission to serve a third-party subpoena on Comcast Cable before the parties’ required discovery conference. It represented that internet providers routinely delete relevant information after a certain period. Strike 3 also represented that it had a policy of proposing confidentiality agreements and not seeking settlements unless a defendant initiated settlement discussions.
The court noted concerns expressed in other proceedings about Strike 3’s litigation practices, including the possibility that embarrassment over allegations involving pornography could pressure innocent account owners to settle. The court nevertheless explained that the law permits limited early discovery to identify an unknown defendant when the plaintiff satisfies the applicable requirements.
Legal standard and analysis
Under Federal Rule of Civil Procedure 26(d), a court may allow discovery before the parties’ Rule 26(f) conference when doing so serves convenience and the interests of justice. Courts in the Ninth Circuit generally ask whether the plaintiff has shown “good cause.” The court applied factors concerning whether the unknown defendant was identified with enough specificity, whether the plaintiff had taken reasonable steps to locate the defendant, whether the complaint could withstand a motion to dismiss, and whether the requested discovery was reasonably likely to produce information that would permit service.
The court concluded that Strike 3 met those requirements. It explained that Ninth Circuit precedent supports limited discovery in copyright-infringement cases and that Strike 3 needed the subpoena to determine the defendant’s identity. The court also concluded that the copyright allegations had to be accepted as true for purposes of the motion and that the criticism of Strike 3’s litigation pattern did not support denying the subpoena at this stage.
The court further explained that an internet account owner is not necessarily the person who used the address to infringe copyright because multiple people may have access to one address. That issue did not prevent discovery to determine who used the address and what happened.
Protective measures and disposition
The court held that protective measures were necessary even though it had to allow the subpoena. It ordered that the internet provider send the subscriber a copy of the order when required by federal law and, regardless of that requirement, that Strike 3 request that the provider forward the order. If the provider declined, Strike 3 had to serve the order on the defendant before or at the same time as other service or communication, or file an affidavit stating that the provider had forwarded it.
The court granted Strike 3’s motion for leave to serve a third-party subpoena. Strike 3 could subpoena Comcast Cable for the defendant’s true name and address and could issue follow-on subpoenas to another internet provider identified in response. Strike 3 could use the information only to protect and enforce the rights asserted in its complaint. It could not publicly disclose the information without the court’s permission until the Doe defendant had an opportunity to seek permission to proceed anonymously or further discovery had occurred. References to the defendant’s identity had to be redacted and filed under seal.
Before using the subpoena information, Strike 3 also had to file an affidavit confirming that it had proposed confidentiality to the defendant, including relevant communications concerning the proposal. Any provider receiving a subpoena had to confer with Strike 3, could not charge in advance, and, if it sought production costs, had to provide billing information supporting those costs. The provider also had to preserve subpoenaed information while any timely motion to dismiss remained unresolved.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.