Strike 3 Holdings v. John Doe subscriber assigned IP address 99.103.198.213

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures. It alleged that an unidentified person using internet protocol address 99.103.198.213 downloaded and distributed copies of 56 of those movies through BitTorrent without a license or authorization. Strike 3 said that its investigation connected the activity to the Northern District of California and that AT&T was the internet service provider associated with the address.

Strike 3 filed a copyright-infringement complaint against the unidentified subscriber. Before the parties’ required discovery conference, Strike 3 asked for permission to serve AT&T with a subpoena seeking only the name and physical address of the person or people associated with the account. The defendant had not been identified or served, so no opposition had been filed.

Early Discovery

The court explained that discovery normally cannot begin before the parties’ required Rule 26(f) conference, but Rule 26(d)(1) allows the court to authorize earlier discovery for good cause. Courts consider whether the unidentified defendant is described specifically enough to be sued, what steps the plaintiff took to identify the person, whether the complaint could survive a motion to dismiss, and whether the requested discovery is likely to produce identifying information.

The court found that all four factors favored Strike 3. The allegations suggested that the defendant was a real person who could be sued, and Strike 3 described its efforts to identify the person through searches, other sources, investigators, and cybersecurity consultants. The court also found that the complaint sufficiently alleged copyright infringement for this stage of the case. It emphasized that this finding did not decide the ultimate merits of the infringement claim.

The court further found good cause because the proposed subpoena was limited to the subscriber’s name and physical address, AT&T was likely to possess that information, and identifying the defendant was necessary for the case to proceed. The court concluded that the need for this discovery outweighed the burden on AT&T.

Protective Order

The court separately considered privacy concerns. It stated that the person identified by AT&T might be the defendant, or might instead be an innocent third party who pays for or uses the internet service. Because the allegations involved adult motion pictures and therefore sensitive and highly personal subject matter, the court found good cause to protect the person’s identity from annoyance, embarrassment, and unfairness.

The court ordered that information AT&T produces in response to the subpoena must be treated as confidential by all parties. That protection continues until the identified person has an opportunity to ask to proceed anonymously and the court rules on that request. If the defendant or another identified third party does not file such a request 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 in an anonymity request must be filed under seal while the court considers the request.

Disposition

Judge Peter H. Kang granted Strike 3’s application for leave to serve the limited, early third-party subpoena on AT&T before the Rule 26(f) conference. The court also issued the limited protective order described above. The order did not resolve whether the defendant infringed Strike 3’s copyrights.