Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 23.88.132.19

Background

This omnibus order addresses fourteen similar cases filed by Strike 3 Holdings, LLC in the District of Minnesota. The defendants were identified in the captions as John Doe subscribers associated with particular internet protocol addresses. The fourteen docket numbers were 23-cv-1014, 23-cv-1017, 23-cv-1019, 23-cv-1021, 23-cv-1024, 23-cv-1026, 23-cv-1027, 23-cv-1164, 23-cv-1165, 23-cv-1167, 23-cv-1168, 23-cv-1169, 23-cv-1171, and 23-cv-1172.

Strike 3 alleged that each unnamed defendant used the BitTorrent file-distribution system to download and distribute one or more of Strike 3’s copyrighted movies without authorization. Strike 3 said its infringement-detection system identified the alleged activity by internet protocol address, but that the relevant internet service provider could connect each address to a subscriber’s name and address.

Strike 3 filed an ex parte motion in each case for permission to serve a subpoena on the relevant internet service provider before the parties’ required conference under Federal Rule of Civil Procedure 26(f). Strike 3 sought the information to identify the defendant, investigate the alleged infringement, and serve the defendant.

Court’s analysis

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the Rule 26(f) conference unless the rules, the parties, or a court order authorizes it. The court explained that early discovery may be appropriate when a defendant’s identity is unknown. Courts in the District of Minnesota generally apply a good-cause test that weighs the need for expedited discovery against prejudice to the responding party.

The court applied five factors: whether the plaintiff made a concrete initial showing of an actionable claim; whether the discovery request was specific; whether alternative means existed to obtain the information; whether the information was needed to advance the claim; and the defendant’s expectation of privacy.

The court found that all five factors supported early discovery. It said Strike 3 had sufficiently alleged ownership of valid copyrights, copying and distribution of original elements of its works, and lack of authorization. The court also found that the request was limited to each defendant’s name and address, that there were no alternative means to obtain the information, and that the cases could not proceed without identifying the defendants.

The court recognized that the subscriber connected to an internet protocol address might not be the person who committed the alleged infringement. It also recognized that the subject matter could be sensitive and embarrassing. The court therefore concluded that Strike 3’s ability to pursue its copyright claims outweighed the subscribers’ privacy interests only with protective conditions.

Ruling

The court granted all fourteen motions for leave to serve a third-party subpoena before the Rule 26(f) conference. Each subpoena may seek only the name and address of the subscriber assigned to the identified internet protocol address during the periods of alleged infringement described in the complaint’s exhibit.

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

Within fourteen calendar days after receiving a subpoena, the 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 provider with a copy of the order, and the provider must provide that copy with the required notice. No other discovery was authorized at that time.

Strike 3 may not publicly disclose information produced in response to a subpoena until the subscriber has had an opportunity to ask to proceed anonymously and the court has ruled on that request. If the subscriber does not file such a request within forty-five calendar days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. Strike 3 also had to file a status report in each case by July 12, 2023, without including information about the defendants’ identities.

This order authorized limited discovery; it did not decide whether any defendant committed copyright infringement.