Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 24.131.129.76

Background

Strike 3 Holdings, LLC filed fifteen similar cases against John Doe defendants identified only by internet protocol addresses. Strike 3 alleged that each defendant used the BitTorrent file-distribution protocol to download and distribute Strike 3’s copyrighted movies without authorization. Strike 3 said its infringement-detection system identified the relevant internet addresses, but that the defendants’ internet service providers were the only parties able to connect those addresses to names and mailing addresses.

In each case, Strike 3 filed an ex parte motion—meaning a motion made without first notifying the opposing party—for permission to serve a third-party subpoena before the parties held the discovery conference required by Federal Rule of Civil Procedure 26(f). Strike 3 sought permission to subpoena the relevant internet service provider for the subscriber’s identity so it could investigate the alleged infringement and serve the defendant.

Court’s analysis

The court explained that discovery generally cannot begin before the Rule 26(f) conference unless a rule, agreement, or court order permits it. The District of Minnesota commonly applies a good-cause standard to requests for expedited discovery. Under that standard, the need for immediate discovery must outweigh the prejudice to the responding party.

The court applied five factors previously used in similar cases: whether the plaintiff showed a concrete initial claim of actionable harm; whether the discovery request was specific; whether other ways existed to obtain the information; whether the information was needed to advance the claim; and the subscriber’s expectation of privacy.

The court found expedited discovery warranted in all fifteen cases because Strike 3 sufficiently alleged copyright infringement, the request was limited to each subscriber’s name and address, no alternative means of identification were available, and the cases could not proceed without identifying the defendants. The court also found that Strike 3’s interest in pursuing its copyright claims outweighed the subscribers’ privacy interests, provided that privacy protections were imposed.

The court expressly recognized that the subscriber associated with an internet address might not be the actual infringer. An internet address alone, the court noted, does not necessarily establish that the account holder committed the alleged infringement.

Order

The court granted each of Strike 3’s fifteen motions for permission to serve a third-party subpoena before the Rule 26(f) conference. Strike 3 may serve a Federal Rule of Civil Procedure 45 subpoena on each relevant internet service provider seeking only the name and address of the subscriber assigned to the identified internet address during the period of the alleged infringement.

Each subpoena must give at least sixty days’ notice before production is required and must be limited to one category of documents identifying the subscriber. The internet service provider may seek a protective order if it has a legitimate basis.

Within fourteen calendar days after receiving the subpoena, the internet service provider must notify the subscriber that Strike 3 sought the subscriber’s identity. The subscriber then has forty-five calendar days from the notice date to seek a protective order, file a responsive pleading, or do both. Strike 3 must provide the internet service provider with a copy of the order, and the provider must provide the subscriber with the order and required notice.

Strike 3 may not publicly disclose information produced in response to the subpoenas until the subscriber has had an opportunity to request permission to proceed anonymously and the court has ruled on that request. If a subscriber does not seek permission to proceed anonymously within forty-five days after the information is disclosed to Strike 3’s counsel, the limited protective order will expire. No other discovery was authorized at that time. Strike 3 was also ordered to file a status report in each case by May 31, 2023, without including information about the defendants’ identities.