Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.45.253.55

Background

Strike 3 Holdings, LLC brought a copyright-infringement action against John Doe, whose name was unknown and who was identified by internet protocol address 98.45.253.55. Strike 3 alleged that Doe used the BitTorrent protocol to download and distribute Strike 3’s copyrighted movies, including 76 movies over an extended period.

The court had previously authorized Strike 3 to serve Comcast Cable, identified as Doe’s internet service provider, with a subpoena seeking the name and address of the subscriber associated with the internet protocol address. Doe moved to quash, or cancel, that subpoena.

Legal standard

The court applied Federal Rule of Civil Procedure 45, which governs subpoenas to nonparties. The scope of discovery under that rule is generally the same as under Rule 26. Discovery must concern nonprivileged information relevant to a claim or defense and proportional to the needs of the case. A court must quash or modify a subpoena that, among other things, requires disclosure of privileged information or subjects a person to an undue burden.

The court also explained that a party generally cannot challenge a subpoena issued to someone else unless the party claims a personal right or privilege concerning the requested information. The party seeking to quash the subpoena bears the burden of persuasion, while the party issuing it must show that the discovery is relevant.

Discussion

The court first noted that Doe did not dispute Strike 3’s assertion that his lawyer failed to confer with Strike 3’s counsel before filing the motion. The court stated that lawyers must confer in good faith before filing discovery motions and warned Doe and his lawyer that it would not consider future motions unless counsel had first conferred to try to resolve all disputed issues.

The court nevertheless considered Doe’s arguments and found them without merit. Doe principally argued that the subpoena violated his privacy under the Cable Privacy Act and that the lawsuit was intended to embarrass, harass, or annoy him. The court observed that its earlier authorization order already prohibited Strike 3 from publicly disclosing the subscriber’s identifying information without the subscriber’s consent or the court’s permission. The court therefore concluded that Doe’s privacy concerns had already been addressed. The court also noted that Doe acknowledged an internet service provider may disclose identifying information under a court order when the provider gives the subscriber notice, which the court found had occurred here.

Doe also argued that the complaint was insufficient because it did not explain in enough detail how Strike 3 acquired ownership of the movies or identify the allegedly infringed movie titles. The court rejected the argument as a basis for quashing the subpoena. It explained that the cited appellate decision did not bar early discovery seeking an internet subscriber’s identity. The court had previously indicated that, after learning Doe’s identity, Strike 3 could not rely only on the fact that he was the registered subscriber of an internet address associated with infringing activity to plead a plausible direct or contributory copyright claim. But the court concluded that this pleading issue did not prevent Strike 3 from using the subpoena to learn the subscriber’s identity. Arguments about whether Strike 3 would ultimately be able to prove its case were premature at this stage.

Disposition

The court denied Doe’s motion to quash Strike 3’s subpoena to Comcast. The opinion did not decide whether Doe infringed Strike 3’s copyrights or whether Strike 3 would ultimately prevail on its copyright claims.