Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.94.40.42

Background

This omnibus order addresses substantially identical motions filed in 17 related cases. The cases are Nos. 23-cv-1434, 23-cv-1436, 23-cv-1439, 23-cv-1440, 23-cv-1441, 23-cv-1442, 23-cv-1443, 23-cv-1444, 23-cv-1562, 23-cv-1564, 23-cv-1565, 23-cv-1566, 23-cv-1567, 23-cv-1568, 23-cv-1569, 23-cv-1570, and 23-cv-1571. Each complaint names a John Doe subscriber identified by an internet-protocol address. Strike 3 alleges that the subscriber used the BitTorrent file-distribution system to download and distribute one or more of Strike 3’s copyrighted movies without authorization.

Strike 3 alleged that its proprietary infringement-detection system identified the relevant internet-protocol address but that Strike 3 could not identify the person associated with that address. According to Strike 3, the internet service provider could identify the subscriber by matching the address to account information. Strike 3 therefore sought permission to serve a Federal Rule of Civil Procedure 45 subpoena on each provider before the parties’ Rule 26(f) conference. The requested discovery was intended to identify the subscriber, investigate the alleged infringement, and allow service of the lawsuit.

Legal standard

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties confer under Rule 26(f), unless the court authorizes earlier discovery. The court explained that courts in the District of Minnesota generally apply a “good cause” standard, asking whether the need for expedited discovery outweighs prejudice to the responding party. Courts have also applied five factors: whether the plaintiff has made a concrete initial showing of actionable harm; whether the discovery request is specific; whether alternative means of obtaining the information exist; whether the information is needed to advance the claim; and the subscriber’s expectation of privacy.

Court’s analysis

The court concluded that early discovery was warranted in all 17 cases. First, it found that Strike 3 had sufficiently alleged an actionable copyright-infringement claim. The court stated that copyright infringement requires ownership of a valid copyright and copying of original elements of the copyrighted work. It found that Strike 3 sufficiently alleged ownership, unauthorized copying and distribution by each defendant, and lack of authorization.

Second, the court found the requested discovery specific because it sought only the name and address of the subscriber assigned to the identified internet-protocol address during the relevant period. Third, the court found no alternative way to obtain the identifying information. Fourth, the court found that the cases could not proceed without identifying the defendants. Finally, the court determined that Strike 3’s interest in pursuing its copyright claims outweighed the subscribers’ privacy interests, provided that the court imposed privacy protections.

The court expressly recognized that the subscriber may not be the person who committed the alleged infringement. It noted that a subscriber could be implicated in a case involving sensitive and potentially embarrassing subject matter even though someone else used the internet connection. The court therefore authorized only limited discovery and imposed a protective order.

Ruling and conditions

Judge Dulce J. Foster granted all 17 motions for permission to serve a third-party subpoena before the Rule 26(f) conference. The order permits Strike 3 to 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 give at least 60 days’ notice before production is required and may seek only one category of documents identifying the particular subscriber. The 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 a copy of the order with each subpoena, and the provider must give the subscriber a copy of the order 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. Strike 3 also had to file a status report in each case by August 15, 2023, without including information about any defendant’s identity.