Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 69.181.70.63

Background

Strike 3 Holdings, LLC applied ex parte—without a prior hearing involving the opposing party—for permission to serve a third-party subpoena before the parties’ conference required by Federal Rule of Civil Procedure 26(f). The requested subpoena would be directed to Comcast Cable, identified as the Internet service provider, and would seek the true name and address of the defendant identified in the complaint as the subscriber assigned the listed Internet Protocol address.

Court’s Analysis

The court found that Strike 3 had shown “good cause” to serve the subpoena under Federal Rule of Civil Procedure 45. The court also authorized Strike 3 to serve a similar subpoena on any service provider identified in response to the first subpoena as providing Internet services to the defendant. Strike 3 must attach the order to each subpoena.

If the Internet service provider qualifies as a cable operator under 47 U.S.C. § 522(5), the order requires compliance with the notice provision in 47 U.S.C. § 551(c)(2)(B). That provision permits disclosure of personal identifying information under a court order if the subscriber is notified of the order by the person to whom it is directed.

Conditions and Protections

Strike 3 may use information disclosed in response to the subpoena only to protect and enforce the rights asserted in its complaint. Each provider has 30 days after service to notify each affected subscriber by providing the subpoena and the order. The provider may use a reasonable method, including first-class or overnight mail to the subscriber’s last known address.

Each subscriber and each provider has 30 days after service on that person or entity to file a motion contesting the subpoena, including a motion to quash or modify it. If that period expires without a challenge, the provider has 10 days to produce the responsive information for that subscriber.

The court issued a limited protective order because the subscriber may not be the person who allegedly infringed Strike 3’s copyright and because of the potential embarrassment associated with being publicly accused of illegally downloading adult motion pictures. Any name or other identifying information released to Strike 3 must be treated as confidential and may not be publicly disclosed until the defendant has had an opportunity to ask to proceed anonymously and the court has ruled on that request. If the defendant does not file such a motion within 30 days after the information is disclosed, the limited protective order will expire.

Disposition

The court granted Strike 3’s ex parte application for leave to serve a third-party subpoena, subject to the notice, challenge, use, and confidentiality requirements stated in the order. The order was signed by Judge Haywood S. Gilliam, Jr.