Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.164.62.34

Background

Strike 3 Holdings, LLC filed fourteen similar copyright-infringement cases against John Doe defendants in the District of Minnesota. Each defendant was identified in the complaint by an internet protocol address. Strike 3 alleged that the defendant used BitTorrent to download and distribute one or more of Strike 3’s copyrighted movies without authorization. Strike 3 said its infringement-detection system identified the internet protocol address but that the relevant internet service provider could connect the address to a subscriber’s name and address.

Strike 3 filed an ex parte motion in each case for permission to serve a Federal Rule of Civil Procedure 45 subpoena on the internet service provider before the parties held the conference ordinarily required before discovery begins. Strike 3 sought the information to identify the defendant, investigate the alleged infringement, and serve the defendant.

Court’s analysis

The court applied the District of Minnesota’s good-cause standard for expedited discovery, meaning discovery allowed earlier than usual when the need for speed outweighs prejudice to the responding party. The court considered five factors: whether Strike 3 showed a concrete initial claim of harm, whether the request was specific, whether another way existed to obtain the information, whether the information was needed to advance the claims, and the subscriber’s expectation of privacy.

The court found expedited discovery warranted in all fourteen cases. It concluded that Strike 3 had sufficiently alleged copyright infringement by claiming ownership of valid copyrights, copying and distribution by each defendant, and lack of authorization. The request was limited to each subscriber’s name and address, no alternative means of obtaining the information existed, and the cases could not proceed without identifying the defendants. The court also recognized that the subscriber might not be the actual infringer and that the allegations involved sensitive and potentially embarrassing subject matter.

Order and effect

The court granted all fourteen motions. Strike 3 may serve a Rule 45 subpoena on each defendant’s internet service provider seeking only the name and address of the subscriber assigned to the relevant internet protocol address during the alleged infringement period. The subpoena must provide at least 60 days’ notice before production is required and may cover only one category of documents identifying the subscriber.

The internet service 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. No other discovery was authorized at that time. Strike 3 must provide the order with the subpoena, and the provider must provide the order and required notice to the subscriber.

Strike 3 may not publicly disclose information produced under the subpoena until the defendant has had an opportunity to request permission to proceed anonymously and the court has ruled on that request. If the defendant does not seek permission to proceed anonymously within 45 calendar days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. Strike 3 must also file a status report in each of the fourteen cases by July 12, 2023, without including information about the defendants’ identities. The order authorized discovery but did not determine whether any defendant committed copyright infringement.