Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 76.113.240.67

Background

The court issued one omnibus order addressing Strike 3 Holdings, LLC’s substantially similar motions in 14 District of Minnesota copyright cases. The defendants were identified as John Doe subscribers associated with specific internet-protocol addresses, including 76.113.240.67 in Case No. 23-cv-1171.

Strike 3 alleged that each Doe 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 activity associated with each IP address, but it could not identify the defendants by name. Strike 3 alleged that the relevant internet service providers could connect the IP addresses to subscriber names and addresses.

Strike 3 sought permission to serve Federal Rule of Civil Procedure 45 subpoenas on the internet service providers before the parties held the discovery-planning conference normally required by Rule 26(f). It sought only the information needed to identify the subscribers, investigate their possible involvement, and serve them with the lawsuits.

Legal standard and analysis

The court explained that discovery generally cannot begin before the Rule 26(f) conference unless the rules, the parties, or a court order allows it. Courts in the District of Minnesota typically apply a good-cause test, asking whether the need for expedited discovery, considering the administration of justice, outweighs prejudice to the responding party.

Applying factors used in similar cases, the court found that expedited discovery was warranted because:

- Strike 3 sufficiently alleged actionable copyright infringement, including ownership of valid copyrights, copying and distribution, and lack of authorization. - The requested discovery was specific because it sought only each defendant’s name and address. - There was no alternative way to obtain the identifying information. The court noted that the relevant internet service providers allegedly acted only as conduits for internet data, so a different subpoena procedure under the Digital Millennium Copyright Act did not apply under Eighth Circuit precedent. - The cases could not proceed without identifying the defendants. - With privacy protections in place, Strike 3’s interest in pursuing its copyright claims outweighed each subscriber’s expectation of privacy.

The court also acknowledged that a subscriber may not be the person who committed the alleged infringement and could become involved in a case concerning sensitive subject matter. It therefore imposed a limited protective order.

Order

The court granted all 14 motions for permission to serve third-party subpoenas before the Rule 26(f) conference, including the motion in No. 23-cv-1171 concerning the subscriber assigned IP address 76.113.240.67.

The order permits Strike 3 to serve a Rule 45 subpoena on each relevant internet service provider seeking only the name and address of the subscriber assigned the IP address during the alleged infringement period. The subpoena must give at least 60 days’ notice before production is required and may seek only one category of identifying documents. The provider may seek a protective order if it has a legitimate basis.

The provider must notify the subscriber within 14 calendar days after receiving the subpoena. 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 provide the provider with a copy of the court’s order, and the provider must provide that order with the notice to the subscriber and certify that it did so. No other discovery was authorized at that time.

Strike 3 may not publicly disclose information produced under the subpoena until the subscriber has had an opportunity to request permission to proceed anonymously and the court has ruled on that request. If the subscriber does not make that request within 45 days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. The court also ordered temporary sealing of identifying information included in an anonymity request while it considers that request. Strike 3 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 Doe defendant committed copyright infringement.