Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 76.102.20.245

Background

Strike 3 Holdings, LLC alleged that it owns copyrights registered for certain adult motion pictures. It sued an unidentified defendant associated with Internet Protocol address 76.102.20.245, alleging that the defendant used BitTorrent to download and distribute copies of 26 movies without authorization. Strike 3 alleged that its investigative tool, VXN Scan, connected with the device using that IP address and obtained information indicating that portions of copyrighted files were shared.

Strike 3 alleged that MaxMind’s geolocation service linked the IP address to the Northern District of California and identified Comcast Cable Communications, LLC as the Internet service provider associated with the address. Strike 3 asked for permission to serve Comcast with a subpoena seeking only the name and physical address of the person whose account was associated with that IP address. The request was made before the parties’ usual discovery conference, and the unidentified defendant had not been served or identified, so no opposition was filed.

Early subpoena

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties’ Rule 26(f) conference unless the court authorizes it. The court explained that early discovery may be allowed for good cause when the need for expedited discovery, considering the administration of justice, outweighs prejudice to the responding party.

Applying the factors from Columbia Insurance Co. v. seescandy.com, the court found that all four factors supported early discovery:

The court also considered factors concerning expedited discovery, including the subpoena’s narrow scope, its purpose, the burden on Comcast, and the fact that the request came before ordinary discovery. It concluded that Strike 3 had shown good cause and that the need to identify the defendant outweighed the prejudice to Comcast. The court therefore granted Strike 3’s ex parte application for leave to serve the limited third-party subpoena on Comcast before the Rule 26(f) conference.

Protective order

The court separately considered privacy protections under Federal Rule of Civil Procedure 26(c). It found good cause for a limited protective order because the allegations involved sensitive and personal subject matter, and because Comcast’s response might identify an innocent third party who paid for the internet service but was not the alleged infringer.

The court issued a limited protective order requiring information Comcast produced in response to the subpoena to be treated as confidential under the restrictions applicable to “Confidential” material in the Northern District of California’s Model Protective Order for Standard Litigation. The protection would continue until the Doe defendant or another affected third party had an opportunity to ask the court to continue confidentiality and, for the Doe defendant, to proceed anonymously.

If the Doe defendant or another identified third party did not file a motion to proceed anonymously within 30 days after receiving notice that Comcast had produced the information, Strike 3 could ask the court to withdraw or modify the protective order. Any notice from Strike 3 had to include or attach the court’s order. The court also stated that papers containing identifying information in an anonymity request could be filed under seal until the court ruled on that request.

Disposition

The court granted Strike 3’s application to serve the limited early subpoena on Comcast and issued the limited protective order. The order authorized discovery and protected information; it did not determine whether the unidentified subscriber committed copyright infringement.