Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.42.41.220

Background

Strike 3 Holdings, LLC alleged that the John Doe defendant, associated with IP address 98.42.41.220, downloaded and distributed a large number of Strike 3’s copyrighted adult motion pictures over the BitTorrent network. Strike 3 said its proprietary forensic software established direct connections with the IP address but did not reveal the defendant’s identity. Strike 3 also alleged that geolocation technology traced the address to a physical address within the Northern District of California.

Strike 3 applied ex parte, meaning without first giving the opposing party an opportunity to respond, for permission to serve a third-party subpoena before the parties’ required conference under Rule 26(f) of the Federal Rules of Civil Procedure. The requested subpoena was directed to Comcast Cable Communications, LLC, identified as the internet service provider connected to the IP address. Strike 3 sought the Doe defendant’s identity, additional information about the alleged infringement, and information needed to serve the defendant.

Court’s analysis

The court applied the Ninth Circuit’s good-cause standard for early discovery. The court considered whether Strike 3 had identified a real and suable defendant with enough specificity, taken reasonable steps to locate the defendant, alleged a claim that could withstand a motion to dismiss, and shown that the requested discovery was reasonably likely to produce information allowing service.

The court found that Strike 3 satisfied those requirements. It found that the allegations about downloading and distributing copyrighted works, together with the alleged forensic connections to the IP address, sufficiently identified a person who might be the primary subscriber or someone residing with and known to the subscriber. The court also found that Strike 3 could not identify the defendant without the subpoena, that Strike 3 had adequately alleged ownership of valid copyrights and unauthorized copying and distribution, and that the requested discovery was reasonably likely to identify the defendant.

Ruling and protective conditions

The court GRANTS Plaintiff’s Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Strike 3 may immediately serve a Rule 45 subpoena on Comcast to obtain the Doe defendant’s true name and addresses. Strike 3 may also serve a similar subpoena on a later-identified internet service provider, subject to the order’s requirements.

The subpoenaed provider must notify the Doe defendant within 30 days after service. The Doe defendant then has 30 days after receiving notice to contest the subpoena, including by asking the issuing court to cancel or modify it. If no challenge is filed during that period, the provider has 10 days to produce the responsive information. The provider must preserve the information while a timely challenge is pending and may not charge production costs in advance.

The order also temporarily protects information disclosed to Strike 3. Strike 3 may not publicly disclose the information until the Doe defendant has had an opportunity to ask to proceed anonymously and the court has ruled on that request. If the Doe defendant does not file such a request within 30 days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. Any information obtained through the subpoena may be used only to protect Strike 3’s rights described in its complaint. The order was signed by United States Magistrate Judge Robert M. Illman.