Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.37.130.41

Background

Strike 3 Holdings, LLC filed a copyright-infringement lawsuit against John Doe, whom the complaint identifies by the Internet Protocol (IP) address 98.37.130.41. Strike 3 alleged that Doe infringed 24 of its motion pictures using BitTorrent. Because Doe’s name was not identified, Strike 3 applied for permission to serve Comcast Cable with a subpoena before the parties’ Rule 26(f) conference, the conference at which the parties ordinarily discuss the case and discovery.

Strike 3 submitted materials describing its investigation, including evidence that the IP address was associated with Comcast Cable at the relevant time and traced to a location in San Jose, California. The materials also stated that the IP address uploaded part or parts of a file corresponding to an identified hash value and that the files were identical, strikingly similar, or substantially similar to Strike 3’s motion pictures.

Ruling

For reasons similar to those in another Strike 3 case, the court granted what it described as limited early discovery. The court ordered that Strike 3 may immediately serve Comcast Cable with a Rule 45 subpoena seeking Doe’s true name and address. Strike 3 must attach the order to the subpoena, and any information Comcast provides may be used only to serve Doe and prosecute the claims in the complaint.

Comcast has 30 days after service to give Doe a copy of the subpoena and the order. Doe then has 30 days after receiving the order to file motions contesting the subpoena. If that period expires without a challenge, Comcast must provide the responsive information to Strike 3 within 10 days.

The court also ordered that Strike 3 may not publicly disclose Doe’s identifying information before Doe has an opportunity to ask to proceed anonymously and the court rules on that request. Doe may file that request under seal. Judge Edward M. Chen stated that allowing early discovery did not prevent Doe from filing a motion to dismiss for failure to state a claim and did not prejudge such a motion. The court also reminded Strike 3 of its duty under Rule 11 to reassess whether to continue the lawsuit after learning Doe’s name and address, noting that merely alleging that an IP-address subscriber was associated with infringement may be insufficient to state a direct or contributory infringement claim.

Disposition

The court granted Strike 3’s ex parte application for leave to serve a third-party subpoena before the Rule 26(f) conference and ordered the procedures governing Comcast’s response, Doe’s ability to challenge the subpoena, and protection of Doe’s identifying information. The order disposed of Docket No. 7. It did not decide the merits of the copyright-infringement claims.