Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 207.153.41.34

Background

Strike 3 Holdings, LLC filed twelve similar copyright-infringement cases against unnamed defendants identified in the captions by internet protocol addresses. Strike 3 alleged that each 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 monitoring system detected the alleged activity but that it could not identify the defendants by name. It alleged that each defendant’s internet service provider could identify the subscriber associated with the relevant address.

In each case, Strike 3 filed an ex parte motion—meaning a motion filed without advance notice to the opposing party—for permission to serve a subpoena on the internet service provider before the parties held the conference normally required by Federal Rule of Civil Procedure 26(f). Strike 3 sought the information to identify the alleged infringer, investigate the alleged infringement, and serve the defendant.

Legal standard and analysis

The court explained that discovery generally cannot begin before the Rule 26(f) conference unless authorized by the rules, an agreement, or a court order. Courts in the District of Minnesota generally apply a “good cause” standard to requests for expedited discovery, weighing the need for early discovery against prejudice to the responding party. The court applied five factors used in similar cases: whether the plaintiff showed a preliminary actionable claim, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the defendant’s expectation of privacy.

The court concluded that expedited discovery was warranted in all twelve cases. It found 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 court also found that the requests were specific because they sought only 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. Although the court recognized that an internet subscriber might not be the person who committed the alleged infringement and that the subject matter could be sensitive or embarrassing, it found that privacy protections could address those concerns.

Order

The court granted all twelve motions for leave to serve third-party subpoenas before the Rule 26(f) conference. The order authorized Strike 3 to serve a Federal Rule of Civil Procedure 45 subpoena on each defendant’s internet service provider, seeking only the name and address of the subscriber assigned to the relevant internet address during the alleged infringement period.

The subpoena had to give at least 60 days’ notice before production was required and could seek only one category of documents identifying the particular subscriber. The internet service provider could seek a protective order if it had a legitimate basis. Within 14 calendar days after receiving the subpoena, the provider had to notify the subscriber. The subscriber then had 45 calendar days from the notice date to seek a protective order, file a responsive pleading, or do both.

Strike 3 had to serve a copy of the order with each subpoena. The provider had to give the subscriber a copy of the order and certify that it had provided the required notice. The order authorized no other discovery at that time. Strike 3 could not publicly disclose information produced by the subpoena until the subscriber had an opportunity to ask to proceed anonymously and the court had ruled on that request. If no anonymity motion was filed within 45 calendar days after the information was disclosed to Strike 3’s counsel, the limited protective order would expire. The order also required Strike 3 to file a status report in each of the cases addressed by the order by October 2, 2023, without including information about the defendant’s identity.