Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 98.240.195.174

Background

This omnibus order addressed substantively similar motions in twelve related cases filed by Strike 3 Holdings, LLC against unidentified John Doe defendants. In the case identified above, the defendant was described as the subscriber assigned IP address 98.240.195.174. Strike 3 alleged that each Doe defendant infringed its copyrights by using the BitTorrent file-distribution protocol to download and distribute one or more of Strike 3’s copyrighted movies.

Strike 3 alleged that its proprietary infringement-detection system, VXN, identified internet addresses distributing its copyrighted works. Strike 3 said it could not identify the defendants by name but that each defendant’s internet service provider could correlate the relevant IP address with the subscriber’s name and address. Strike 3 therefore sought permission to serve a Federal Rule of Civil Procedure 45 subpoena on each internet service provider before the parties held the conference generally required by Rule 26(f).

Legal standard and analysis

Rule 26(d)(1) generally bars discovery before the Rule 26(f) conference unless the rules, the parties, or the court authorize it. The court applied the “good cause” standard used by courts in the District of Minnesota for expedited discovery. That standard asks whether the need for immediate discovery, considering the administration of justice, outweighs prejudice to the responding party.

The court also applied five factors used in similar cases: whether the plaintiff made a concrete initial showing of an actionable claim; whether the discovery 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 found expedited discovery warranted because:

- Strike 3 sufficiently alleged an actionable copyright-infringement claim by alleging ownership of valid copyrights, copying and distribution by each defendant, and lack of authorization. - The requested discovery was specific because it sought only each defendant’s name and address. - The court found no alternative way to obtain the identifying information. - 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 privacy expectation.

The court expressly recognized that the subscriber associated with an IP address might not be the actual infringer and could nevertheless become involved in litigation concerning sensitive and potentially embarrassing subject matter.

Ruling

The court granted each of Strike 3’s twelve motions for leave to serve a third-party subpoena before the Rule 26(f) conference. For each case, Strike 3 may serve a Rule 45 subpoena on the defendant’s internet service provider seeking only the name and address of the subscriber assigned to the IP address identified in the complaint during the periods of alleged infringement.

The subpoena must give 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 to do so.

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 serve the order with the 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 the subpoena until the subscriber has had an opportunity to ask to proceed anonymously and the court has ruled on that request. If the subscriber includes identifying information in that request, the court found good cause to temporarily file the request under seal. The limited protective order expires if the subscriber does not request permission to proceed anonymously within 45 calendar days after the information is disclosed to Strike 3’s counsel. Strike 3 was also ordered to file a status report in each of the seventeen cases addressed by the order by October 2, 2023, without including information about any defendant’s identity.