Strike 3 Holdings v. John Doe subscriber assigned IP address 108.77.233.142

Background

Strike 3 alleged that it owns copyrights in certain adult motion pictures and that the unidentified defendant, associated with Internet Protocol address 108.77.233.142, used the BitTorrent file-sharing network to download and distribute unauthorized copies. Strike 3 alleged that its investigation recorded infringement involving 31 movies and traced the activity to an Internet service account associated with AT&T.

Strike 3 filed a copyright-infringement complaint against John Doe and sought permission to serve AT&T with a subpoena before the parties’ required Rule 26(f) conference. The proposed subpoena sought only the name and physical address of the person or people associated with the account for the specified IP address. The defendant had not been identified or served, so no opposition was filed.

Early discovery

Federal Rule of Civil Procedure 26(d)(1) generally limits when discovery may begin, but allows a court to authorize earlier discovery. The court applied standards requiring good cause, meaning that the need for expedited discovery must outweigh the burden or prejudice to the responding party.

The court also applied four factors used to decide whether early discovery may identify an unknown defendant: whether the complaint describes a real person who can be sued in federal court; whether the plaintiff explains its efforts to identify that person; whether the complaint could withstand an initial request for dismissal; and whether the discovery is likely to produce information allowing service of process.

The court found that all four factors favored Strike 3. It found that the allegations sufficiently described a likely identifiable person using the specified IP address, and that Strike 3 had described searches, consultations, and technical investigative efforts to locate the person. The court concluded that the complaint adequately alleged copyright infringement at this stage, while expressly stating that it was not deciding the ultimate merits of the case. The court also found that AT&T was likely to have subscriber information that could identify the defendant or help locate the proper defendant.

The court separately considered the limited nature and purpose of the request, the apparent burden on AT&T, and the fact that discovery was requested at the beginning of the case because Strike 3 could not proceed against an unidentified defendant. It found that the need to identify the defendant outweighed the prejudice to AT&T.

Protective order

The court issued a limited protective order to protect the privacy of the person identified by AT&T, whether that person was the defendant or an innocent third party who paid for or used the Internet account. The court cited the sensitive and personal nature of the adult motion pictures and the risk of annoyance, embarrassment, or unfairness from public identification.

Information AT&T produces in response to the subpoena must be treated as confidential by all parties until the court rules on a motion seeking continued confidential treatment or permission for the defendant to proceed anonymously. If the defendant or another identified third party does not file such a motion within 30 days after receiving notice that AT&T produced the information, Strike 3 may ask to withdraw or modify the protective order. Papers containing identifying information submitted with a request to proceed anonymously are to be filed under seal until the court can rule on that request.

Disposition

The court granted Strike 3’s application for leave to serve the limited third-party subpoena on AT&T before the Rule 26(f) conference and issued the limited protective order. The order did not determine whether John Doe infringed Strike 3’s copyrights.