Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 98.61.38.80

Background

Strike 3 filed 21 similar copyright cases against unidentified John Doe defendants in the District of Minnesota. In this case, 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 said its infringement-detection system identified the alleged activity by the defendant’s IP address, but Strike 3 could not identify the person behind that address. Strike 3 alleged that the Internet service provider could identify the subscriber by matching the IP address with the subscriber’s name and address.

Strike 3 asked for permission to serve a Federal Rule of Civil Procedure 45 subpoena on the Internet service provider before the parties held the discovery conference normally required by Rule 26(f). The requested early discovery was intended to identify the defendant, investigate the alleged infringement, and allow Strike 3 to serve the defendant.

Court’s analysis

The court applied the district’s “good cause” standard for expedited discovery. That standard asks whether the need for early discovery, considering the administration of justice, outweighs the prejudice to the responding party. The court also applied five factors: whether Strike 3 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 for the case to proceed; and whether the request respected the defendant’s privacy expectations.

The court found that Strike 3 adequately alleged a copyright-infringement claim by alleging ownership of valid copyrights, copying and distribution by the defendant, and lack of authorization. It found the request specific because it sought only the subscriber’s name and address, found no alternative way to obtain that information, and concluded that the cases could not proceed without identifying the defendants. The court recognized that the subscriber might not be the actual infringer, but found that privacy protections could address that concern.

Order

For all 21 cases, including No. 23-cv-2955, the court granted Strike 3’s motion for leave to serve a third-party subpoena before the Rule 26(f) conference. Strike 3 may subpoena the Internet service provider for 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 60 days’ notice before production is required and may request only one category of documents identifying the particular subscriber. The Internet service 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 provide the order with the subpoena, and the Internet service provider must provide the order with the required notice. No other discovery was authorized. Strike 3 also may not publicly disclose information produced in response to the subpoena until the defendant has had an opportunity to request permission to proceed anonymously and the court has ruled on that request. The order required a status report in each case, without identifying information about the defendant.