Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 207.153.16.183

Background

Strike 3 Holdings, LLC filed 21 similar cases against unnamed John Doe defendants in the District of Minnesota. In this case, the defendant was identified in the caption by the internet protocol address 207.153.16.183. Strike 3 alleged that the defendant used the BitTorrent file-distribution protocol to download and distribute Strike 3’s copyrighted movies without authorization.

Strike 3 alleged that its proprietary infringement-detection system, called VXN, detected the alleged distribution from the identified internet protocol address. Strike 3 said it could not identify the defendant by name, but that the defendant’s internet service provider could match the address to the subscriber’s name and address.

Strike 3 therefore filed an ex parte motion—meaning a motion filed without advance notice to the opposing party—for permission to serve a third-party subpoena before the parties held the discovery conference normally required by Federal Rule of Civil Procedure 26(f). The requested subpoena would be directed to the internet service provider and would seek information identifying the subscriber.

Legal standard

Rule 26 generally prevents parties from seeking discovery before the Rule 26(f) conference unless the rules, an agreement, or a court order permits it. The court explained that expedited discovery may be appropriate when a defendant’s identity is unknown. Courts in the district generally apply a good-cause standard, which requires weighing the need for faster discovery against potential prejudice to the responding party.

The court applied five factors: whether the plaintiff made a concrete showing of an initial 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 objecting party’s expectation of privacy.

Court’s analysis

The court concluded that expedited discovery was warranted in all 21 cases. It found that Strike 3 sufficiently alleged an actionable copyright-infringement claim by alleging ownership of copyrighted works, unauthorized copying and distribution, and the defendant’s involvement in that distribution. This finding addressed whether Strike 3 could obtain the requested discovery; it did not determine that the subscriber was liable for infringement.

The court also found that the requested discovery was limited to the subscriber’s name and address, that the information could not be obtained through an alternative method identified in the opinion, and that the cases could not proceed without identifying the defendants. The court noted that the Digital Millennium Copyright Act’s subpoena procedure did not apply when an internet service provider merely acted as a conduit for data transferred between internet users. It said the procedure used by Strike 3—filing a John Doe lawsuit and seeking third-party discovery—was an approved way to seek identification in that circumstance.

The court recognized that the subscriber might not be the actual infringer and could be drawn into a case involving sensitive and potentially embarrassing material. It therefore concluded that Strike 3’s interest in pursuing its copyright claims outweighed the subscriber’s privacy expectation only with protective conditions in place.

Order

For case No. 23-cv-3274, the court GRANTED Strike 3’s ex parte motion for leave to serve a third-party subpoena before the Rule 26(f) conference, subject to paragraphs 22 through 27 of the order.

The order permits Strike 3 to serve a Federal Rule of Civil Procedure 45 subpoena on the internet service provider. The subpoena may seek only the name and address of the subscriber assigned to the identified internet protocol address during the periods of alleged infringement described in the complaint. It must provide at least 60 days’ notice before production is required and may request only one category of documents identifying the subscriber.

The provider must notify the subscriber within 14 calendar days after being served. 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 with the notice to the subscriber. The provider must certify that it gave the required notice. 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. The order also requires Strike 3 to file a status report in each of the 21 cases, without including information about any defendant’s identity. The opinion does not explain the apparent date inconsistency in paragraph 27, which refers to a status report due on February 5, 2023 even though the order is dated December 6, 2023.