Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.202.29.173

Background

Strike 3 Holdings, LLC alleged that an unnamed defendant, identified as “John Doe,” shared Strike 3’s copyrighted pornographic films without authorization. Strike 3 knew the Internet Protocol address used to distribute the videos, but the associated Internet service provider, identified here as Comcast, was the entity that could determine which account holder had been assigned that address.

Strike 3 sought permission to serve a Rule 45 subpoena on the provider before the parties’ usual Rule 26(f) conference. The court explained that early discovery may be allowed for the parties’ and witnesses’ convenience and in the interests of justice when the plaintiff shows good cause. The relevant factors included whether the unnamed defendant was identified specifically enough to be sued, whether the plaintiff had taken steps to locate the person, whether the case could withstand a motion to dismiss, and whether the discovery was reasonably likely to produce information allowing service of process.

Arguments and court’s assessment

The court acknowledged criticism from other courts and commentators who characterized Strike 3 as a company that files many similar lawsuits and uses the possibility of embarrassment and defense costs to encourage settlements. Strike 3 responded that it does not seek to force innocent people to settle, files cases only against alleged large-scale unauthorized distributors, does not send demands or seek settlements unless a defendant or counsel initiates the discussion, and supports procedural safeguards allowing a defendant to proceed anonymously.

The court found that Strike 3 had made an adequate showing under the early-discovery standards. It also recognized that there was no certainty that the account holder was the person who distributed the videos. The order therefore addressed the requested identity discovery and protective conditions, rather than determining whether the unnamed defendant was liable for copyright infringement.

Ruling and conditions

The court granted Strike 3’s motion for leave to issue a third-party subpoena. Strike 3 may serve Comcast with a Rule 45 subpoena seeking the true name and address of the defendant to whom the provider assigned the specified Internet Protocol address. Strike 3 must attach the order to the subpoena. It may also subpoena another Internet service provider identified through the discovery process, subject to the same requirements.

The order imposes these protections and requirements:

- If the provider is a cable operator, it must send the subscriber a copy of the order as required by federal law. - Strike 3 must request that the provider forward the order to the subscriber even if the provider is not a cable operator. If the provider declines, Strike 3 must serve the order on the defendant at the same time as, or before, any other service or communication to the defendant. - Strike 3 may use the subpoenaed information only to protect and enforce the rights asserted in its complaint. - Strike 3 may not publicly disclose the information without the court’s permission at least until the unnamed defendant has had an opportunity to seek permission to proceed anonymously or further discovery has occurred. - References to the defendant’s identity must be redacted and filed under seal until further order. - Before using the subpoena, Strike 3 must file an affidavit confirming that it proposed confidentiality to the defendant, including relevant communications about that proposal. - The provider must confer with Strike 3 and may not charge in advance of producing the requested information. If it seeks production costs, it must provide a billing summary and supporting cost reports. - The provider must preserve the subpoenaed information while any timely motion to dismiss is pending.

The order was signed by Chief United States District Judge Richard Seeborg and dated April 16, 2024.