Strike 3 Holdings v. John Doe subscriber assigned IP address 71.202.128.203

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures. It alleged that John Doe, identified in the complaint by Internet Protocol (IP) address 71.202.128.203, used the BitTorrent file-distribution network to download and distribute portions of 31 copyrighted movies without authorization.

Strike 3 said its investigative tool, VXN Scan, connected with the IP address while the user was using BitTorrent and obtained information indicating that copyrighted files had been downloaded and distributed. Strike 3 alleged that MaxMind’s geolocation service traced the IP address to a physical address in the Northern District of California and identified Comcast Cable Communications, LLC as the internet service provider associated with the address. Strike 3 sought only the name and address of the person associated with that IP address.

Because Doe had not been identified or served, no opposition was filed. Strike 3 asked for permission to serve Comcast with a third-party subpoena before the parties’ required discovery conference under Federal Rule of Civil Procedure 26(f).

Early Discovery

Rule 26(d)(1) generally prevents parties from seeking discovery before the Rule 26(f) conference, but permits a court to authorize earlier discovery for good cause. The court applied factors concerning whether Doe was identified with enough specificity, Strike 3’s efforts to identify Doe, whether the complaint could withstand a motion to dismiss, and whether the subpoena was likely to produce information identifying Doe.

The court found all four factors satisfied. It concluded that the allegations described a likely identifiable person who could be sued, that Strike 3 had taken sufficient steps to locate that person, and that the complaint adequately alleged a copyright-infringement claim at this stage. The court also found that Comcast was likely to have the subscriber’s name and address and that the narrow request would impose limited burden and prejudice.

The court expressly stated that it was not deciding the ultimate merits of the copyright case. It ruled only that Strike 3’s complaint could withstand a motion to dismiss for purposes of allowing the requested discovery.

Protective Order

The court also found good cause for a limited protective order because the allegations concerned adult motion pictures and the person identified by Comcast could be an innocent third party rather than the alleged infringer. The order requires all information Comcast produces in response to the subpoena to be treated as confidential by the parties.

That confidential treatment continues until the court rules on a motion by Doe or another affected third party seeking continued confidentiality or permission to proceed anonymously. If Doe or another third party does not file a motion to proceed anonymously within 30 days after receiving notice that Comcast produced the information, Strike 3 may ask the court to withdraw or modify the protective order. If an anonymity request includes identifying information, the court stated that the related papers may be filed under seal while the court considers the request.

Disposition

The court GRANTED Strike 3’s ex parte application for leave to serve a limited third-party subpoena on Comcast before the Rule 26(f) conference and ISSUED the limited protective order described above.