Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.37.229.172

Background

This case was one of twenty-one nearly identical cases addressed in the court’s omnibus order. Strike 3 Holdings, LLC alleged that the John Doe defendant infringed its copyrights by using the BitTorrent file-distribution protocol to download and distribute Strike 3’s copyrighted movies. Strike 3 alleged that its proprietary infringement-detection system identified the IP address involved in the alleged activity, but that Strike 3 could not identify the defendant by name. It alleged that the defendant’s internet service provider could match the IP address to the subscriber’s name and address.

Strike 3 filed an ex parte motion—that is, a motion made before the unidentified defendant had appeared—for permission to serve a third-party subpoena on the internet service provider before the parties held the conference normally required before discovery. Strike 3 sought only the information needed to identify the subscriber, investigate the alleged infringement, and serve the defendant.

Legal standard and analysis

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties’ Rule 26(f) conference unless authorized by the rules, agreement, or court order. The court applied the good-cause standard commonly used in the District of Minnesota for expedited discovery. Under that standard, the need for early discovery must outweigh the responding party’s potential prejudice.

The court applied five factors: whether Strike 3 made a concrete showing of an actionable claim; whether the discovery request was specific; whether alternative means existed to obtain the information; whether the information was needed for the case to proceed; and the subscriber’s expectation of privacy. The court concluded that all five factors supported expedited discovery. It found that Strike 3 sufficiently alleged ownership of valid copyrights, copying and distribution of copyrighted works, and lack of authorization. It also found that the request was limited to the subscriber’s name and address, that no alternative method was available, and that the case could not proceed without identifying the defendant.

The court acknowledged that the subscriber might not be the actual infringer and could be drawn into a case involving sensitive and potentially embarrassing subject matter. It therefore required privacy protections rather than allowing unrestricted disclosure.

Order

For the case involving IP address 73.37.229.172, the court granted Strike 3’s motion for leave to serve a third-party subpoena before the Rule 26(f) conference. Strike 3 may serve a subpoena under Federal Rule of Civil Procedure 45 on the internet service provider, seeking only the name and address of the subscriber assigned to the IP address during the periods identified in the complaint.

The subpoena must give at least sixty days’ notice before production is required and may seek only one category of documents identifying the particular subscriber. The provider must notify the subscriber within fourteen calendar days after receiving the subpoena. The subscriber then has forty-five 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 provider with a copy of the order, and the provider must give the subscriber a copy with the required notice. Strike 3 may not publicly disclose information produced under 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 required Strike 3 to file a status report in each of the twenty-one cases by February 5, 2023, without including information about the defendant’s identity. The opinion does not explain that apparent date inconsistency.