Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 24.118.118.215

Background

Strike 3 Holdings, LLC filed fourteen similar lawsuits against John Doe defendants in the District of Minnesota. The defendants were identified in the captions by internet-protocol addresses. Strike 3 alleged that each defendant used the BitTorrent file-distribution protocol to download and distribute one or more of Strike 3’s copyrighted movies without permission. Strike 3 said its infringement-detection system identified the internet-protocol addresses, but that it could not identify the defendants by name. It alleged that the relevant internet service providers could connect the addresses to subscriber names and addresses.

Discovery request and legal standard

Strike 3 filed an ex parte motion in each case for permission to serve a subpoena under Federal Rule of Civil Procedure 45 before the parties held the conference ordinarily required before discovery. The requested discovery was directed to each defendant’s internet service provider and was intended to obtain the defendant’s identity, investigate the alleged infringement, and permit service of the lawsuit.

The court applied the good-cause standard typically used in the District of Minnesota for expedited discovery. Under that standard, the need for immediate discovery must outweigh prejudice to the responding party. The court considered five factors: whether Strike 3 made a concrete initial showing of an actionable claim; whether the request was specific; whether other ways existed to obtain the information; whether the information was needed to advance the claims; and the subscriber’s expectation of privacy.

Court’s analysis

The court found that Strike 3 had stated an actionable copyright-infringement claim because it alleged ownership of valid copyrights, copying and distribution of copyrighted works, and lack of authorization. The court also found that the discovery request was specific, because it sought only each defendant’s name and address; that there were no alternative ways to obtain the information; and that the cases could not proceed without identifying the defendants.

The court recognized that the subscriber associated with an internet-protocol address might not be the actual infringer and could be drawn into a case involving sensitive and potentially embarrassing subject matter. It therefore concluded that Strike 3’s ability to pursue its copyright claims outweighed the subscribers’ privacy interests only with the protections specified in the order. The order authorized discovery but did not decide whether any defendant actually infringed Strike 3’s copyrights.

Order

The court granted all fourteen of Strike 3’s motions for permission to serve third-party subpoenas before the required conference. The subpoenas may seek only the name and address of the subscriber assigned to the identified internet-protocol address during the periods of alleged infringement listed in the complaint’s exhibit.

Each subpoena must provide at least 60 days’ notice before production is required and must be limited to one category of documents identifying the particular subscriber. The internet service provider may seek a protective order if it has a legitimate basis. Within 14 calendar days after receiving the subpoena, the provider must notify the subscriber. The subscriber then has 45 calendar days from the notice date to seek a protective order, file a responsive pleading, or do both.

Strike 3 must serve the order with each subpoena, and the provider must provide the order with the notice to the subscriber and certify that it did so. No other discovery was authorized at that time. Strike 3 also may not publicly disclose information produced in response to a subpoena until the defendant has had an opportunity to request permission to proceed anonymously and the court has ruled on that request. If no such request is filed within 45 calendar days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. Strike 3 was required to file a status report in each case by July 12, 2023, without including information about the defendant’s identity.

Disposition

Judge Dulce J. Foster granted all fourteen motions for leave to serve third-party subpoenas before the required conference, subject to the stated discovery limits and privacy protections.