Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 71.195.29.69

Background

Strike 3 Holdings, LLC filed 21 similar copyright-infringement cases against unidentified John Doe defendants in the District of Minnesota. In the case identified above, the defendant was identified in the caption by the internet-protocol address 71.195.29.69. Strike 3 alleged that each defendant used the BitTorrent file-distribution system to download and distribute Strike 3’s copyrighted movies without authorization.

Strike 3 said its infringement-detection system identified the relevant internet-protocol addresses, but it could not determine the defendants’ names. It alleged that the defendants’ internet service providers could identify the subscribers associated with those addresses. Strike 3 therefore sought permission to serve subpoenas under Federal Rule of Civil Procedure 45 before the parties held the conference ordinarily required by Rule 26(f). The requested discovery was intended to obtain each subscriber’s name and address, investigate the alleged infringement, and serve the defendant.

Legal standard and analysis

The court explained that early discovery may be allowed when a defendant’s identity is unknown. Courts in the District of Minnesota generally apply a good-cause standard, asking whether the need for expedited discovery, considering the administration of justice, outweighs prejudice to the responding party.

The court applied five factors drawn from Arista Records, LLC v. Doe: whether the plaintiff made a concrete showing of an initial actionable claim; whether the discovery request was specific; whether alternative means 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 in all 21 cases. It concluded that Strike 3 had sufficiently alleged copyright infringement, that the requests were limited to the subscriber’s name and address, that no alternative way to obtain the information was available, and that the cases could not proceed without identifying the defendants. The court also recognized that a subscriber might not be the actual infringer and that the allegations involved sensitive and potentially embarrassing subject matter. It therefore imposed privacy protections.

Order

The court granted each of Strike 3’s 21 motions. For the case involving IP address 71.195.29.69, Strike 3 may serve a Rule 45 subpoena on the internet service provider seeking only the name and address of the subscriber assigned that address during the period of the alleged infringement identified in the complaint.

The subpoena must provide at least 60 days’ notice before production is required and may seek only one category of identifying documents. The internet service provider must notify the subscriber within 14 calendar days after receiving the subpoena. The subscriber then has 45 calendar days from notice 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 court’s order with the subpoena, and the internet service provider must provide the order with the notice to the subscriber and certify that notice was given. Strike 3 may not publicly disclose information produced by the subpoena until the subscriber has had an opportunity to ask to proceed anonymously and the court has ruled on that request. The court also required Strike 3 to file a status report in each case without including the defendant’s identity.

The order was signed by Dulce J. Foster, United States Magistrate Judge.