Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 107.130.100.9

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures. It sued “John Doe Subscriber Assigned IP Address 107.130.100.9,” an unidentified defendant, for copyright infringement under the Copyright Act. Strike 3 alleged that the defendant used BitTorrent to download and distribute copies of 24 of its copyrighted movies without authorization.

Strike 3 said that its investigative technology, called VXN Scan, detected BitTorrent activity associated with the specified Internet Protocol address. Strike 3 also alleged that a geolocation service identified AT&T Internet as the internet service provider connected to that address and located the address in the Northern District of California. According to Strike 3, AT&T’s records could identify the subscriber’s name and physical address.

Because the defendant had not been identified or served, Strike 3 sought permission to serve AT&T with a third-party subpoena before the parties’ required discovery conference under Federal Rule of Civil Procedure 26(f). The proposed subpoena was limited to the name and physical address of the person whose account was associated with the Internet Protocol address. No opposition was filed.

Early Discovery

The court explained that Rule 26(d)(1) generally bars discovery before the Rule 26(f) conference, but permits the court to authorize earlier discovery for “good cause.” The court applied factors concerning whether the defendant was sufficiently identified, what steps Strike 3 had taken to locate the defendant, whether the complaint could survive a motion to dismiss, and whether the subpoena was likely to produce identifying information that would allow service.

The court found that all four factors favored early discovery. Strike 3’s allegations suggested that the defendant was an identifiable person who could be sued in federal court. Strike 3 described its efforts to identify the person, including web searches, research, and consultations with investigators and cybersecurity consultants. The court also found that the complaint sufficiently pleaded a basic copyright-infringement claim for purposes of this discovery request, while expressly stating that it was not deciding the case’s ultimate merits.

The court further found that AT&T was likely to possess information linking the Internet Protocol address to a subscriber. It concluded that the subpoena was narrow, that the requested information was needed to identify the defendant and allow the case to proceed, and that the burden on AT&T was limited. The court therefore granted Strike 3’s ex parte application for leave to serve the limited third-party subpoena on AT&T before the Rule 26(f) conference.

Protective Order

On its own motion, the court issued a limited protective order under Rule 26(c). The court found good cause to protect the privacy of the person identified by AT&T because the allegations involved adult motion pictures and therefore sensitive, personal subject matter. The court also recognized that the subscriber might not be the person who allegedly committed the infringement and that AT&T’s response could identify an innocent third party.

The order requires information produced by AT&T in response to the subpoena to be treated as confidential under the Northern District of California’s Model Protective Order for Standard Litigation. That treatment continues until the identified person has an opportunity to ask to proceed anonymously and, for the defendant, until the court rules on that request. If the defendant or another identified third party does not file a request to proceed anonymously within 30 days after receiving notice that AT&T produced the information, Strike 3 may ask to withdraw or modify the protective order. Any notice from Strike 3 must include a copy of the court’s order.

The court also directed that papers containing identifying information in a request to proceed anonymously be filed under seal until the court can rule on the request. The court’s conclusion granted the application for leave to serve the limited subpoena and issued the limited protective order. It did not enter a merits judgment on the copyright claims.