Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 24.5.181.195

Background

Strike 3 Holdings, LLC alleged that an unidentified person using IP address 24.5.181.195 downloaded and distributed 37 of Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 said it owned registered copyrights in the movies and that its monitoring system connected to the IP address, downloaded copies of the movies, and confirmed the files using BitTorrent identification data. Strike 3 traced the downloads to a physical address in the Northern District of California but could not identify the individual associated with the IP address.

Strike 3 filed one copyright-infringement claim and then sought permission to serve an early subpoena on Comcast Cable, the internet-service provider that supplied the IP address. The requested subpoena was limited to obtaining the name and address of the individual or individuals associated with that IP address.

Legal standard

Federal Rule of Civil Procedure 26(d) permits a court to authorize discovery before the parties’ usual initial conference when appropriate. Courts generally require a showing of “good cause,” meaning that the need for expedited discovery outweighs potential prejudice to the responding party.

The court applied four factors for identifying an unknown defendant through early discovery: whether the plaintiff identified a real person who could be sued in federal court; whether the plaintiff described its efforts to locate the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of process.

Analysis

The court found that Strike 3 satisfied all four factors. First, Strike 3 alleged specific conduct—downloading and distributing its movies through BitTorrent—and traced the activity to the Northern District of California. Second, Strike 3 explained that the IP address alone did not identify the person. Third, the court concluded that Strike 3 had sufficiently alleged a basic copyright-infringement claim by asserting ownership of the copyrights and unauthorized copying and distribution. This finding allowed discovery to proceed; it was not a final decision that the Doe defendant was liable for infringement. Fourth, the court found that Comcast could likely identify the person associated with the IP address.

Protective order

The court issued a limited protective order because the internet subscriber might not be the person who allegedly infringed the copyrights and because the allegations involved sensitive personal matters. Information Comcast provided to Strike 3 had to remain confidential until the Doe defendant had an opportunity to ask to proceed anonymously and the court ruled on that request. If the Doe defendant did not seek permission to proceed anonymously within 30 days after disclosure to Strike 3’s counsel, the limited protection would expire. The court also permitted identifying information in such a request to be filed under seal until the court could decide the request.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve Comcast with a subpoena for the Doe defendant’s true name and addresses, attaching the court’s order. Comcast had to notify the Doe defendant within 30 days after service. The Doe defendant then had 30 days after receiving notice to challenge the subpoena, including by asking the court to cancel or modify it. If no timely challenge was filed, Comcast would have 10 days to produce the responsive information. The subpoenaed entity had to preserve the information while any timely challenge was pending, and any information disclosed could be used only to protect Strike 3’s rights in the lawsuit.