Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.35.26.207

Background

Strike 3 Holdings, LLC filed an ex parte application—an application made without a prior hearing involving the opposing party—for permission to serve a third-party subpoena before the parties’ conference required by Federal Rule of Civil Procedure 26(f). The proposed subpoena would be directed to Comcast Cable Communications, LLC, the internet-service provider associated with the internet protocol address identified in the complaint. The defendant is identified in the caption as John Doe Subscriber Assigned IP Address 98.35.26.207.

Ruling

The court found that Strike 3 Holdings had shown “good cause” to serve the subpoena. The court authorized the plaintiff to serve Comcast with a subpoena under Rule 45 seeking the defendant’s true name and address. A copy of the order must be attached to the subpoena.

The court also authorized Strike 3 Holdings to serve a similar subpoena on any service provider identified in response as providing internet services to the defendant. If the provider qualifies as a cable operator under 47 U.S.C. § 522(5), it must comply with the notice requirement in 47 U.S.C. § 551(c)(2)(B) by sending the defendant a copy of the order.

The plaintiff may use information produced in response to the subpoena only to protect and enforce the rights described in its complaint. The internet-service provider must serve the subscriber with copies of the subpoena and order within 30 days after service on the provider. The subscriber and provider each have 30 days after service on them to file a motion challenging, quashing, or modifying the subpoena. If no challenge is filed within that period, the provider has 10 additional days to produce the responsive information.

The provider must preserve the subpoenaed information until producing it to the plaintiff or until final resolution of a timely motion to quash. The defendant’s name and other identifying information must be filed under seal and not otherwise disclosed. After service on the defendant, the court may require the defendant to seek permission to continue litigating anonymously. The court also advised the plaintiff that future applications for similar relief must include a copy of the proposed subpoena.

Effect of the Order

This order permits early discovery to identify the anonymous defendant; it does not decide the merits of Strike 3 Holdings’ underlying claims. The order does not state that the defendant’s identity was disclosed or that the subpoena was ultimately challenged or enforced.