Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 68.168.178.203

Background

This omnibus order addresses substantively similar motions filed by Strike 3 Holdings, LLC in 21 District of Minnesota cases. The captions identify the defendants as John Doe subscribers associated with particular Internet Protocol (IP) addresses. Strike 3 alleges that each defendant used the BitTorrent file-distribution protocol to download and distribute one or more of Strike 3’s copyrighted movies without authorization.

Strike 3 alleges that its proprietary infringement-detection system, called VXN, detected distribution of its copyrighted works from the identified IP addresses. Strike 3 says it cannot identify the defendants by name, but that each defendant’s internet service provider (ISP) can correlate the IP address with the subscriber’s identity. Strike 3 therefore sought permission to serve a Federal Rule of Civil Procedure 45 subpoena on each ISP before the parties held the discovery conference ordinarily required by Rule 26(f). The requested discovery was limited to each subscriber’s name and address so Strike 3 could investigate the alleged infringement and serve the defendant.

Legal standard and analysis

Rule 26(d)(1) generally prevents a party from seeking discovery before the Rule 26(f) conference unless the rules, a stipulation, or a court order allows it. The court explained that early discovery may be appropriate when a defendant’s identity is unknown. Applying the good-cause standard used in similar cases, the court weighed whether the need for expedited discovery, considered in light of the administration of justice, outweighed prejudice to the responding party.

The court applied five factors: whether Strike 3 made a concrete preliminary showing of an actionable claim; whether the discovery request was specific; whether alternative means existed to obtain the information; whether the information was needed to advance the claims; and the subscriber’s expectation of privacy.

The court concluded that early discovery was warranted in all 21 cases. It found that Strike 3 sufficiently alleged ownership of valid copyrights, unauthorized copying and distribution, and the other elements needed at this stage to state a copyright-infringement claim. It also found that the request was specific, that no alternative means existed to obtain the information, and that the cases could not proceed without identifying the defendants. The court determined that Strike 3’s interest in pursuing its copyright claims outweighed the subscribers’ privacy interests if appropriate protections were imposed.

The court expressly recognized that an ISP subscriber might not be the person who committed the alleged infringement. It also recognized that the subject matter could be sensitive and embarrassing. Those concerns led the court to impose a limited protective order rather than deny the requested discovery.

Order and practical effect

The court granted each of Strike 3’s 21 ex parte motions for permission to serve a third-party subpoena before the Rule 26(f) conference. The plaintiff may subpoena the relevant ISP for only the name and address of the subscriber assigned to the IP address identified in the complaint during the periods of the alleged infringing activity.

Each subpoena must provide at least 60 days’ notice before production is required and may seek only one category of identifying documents. The ISP may seek a protective order if it has a legitimate basis. Within 14 calendar days after receiving the subpoena, the ISP must notify the subscriber. 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 serve the order with any subpoena. The ISP must provide the subscriber with the order and required notice and certify that it did so. 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. If the subscriber does not seek permission to proceed anonymously within 45 calendar days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. The order also addresses temporary sealing of identifying information in an anonymity request. Finally, Strike 3 was ordered to file a status report in each case concerning the authorized discovery and not to include information about any defendant’s identity.

This order concerns discovery and identification of anonymous defendants; it does not determine liability for copyright infringement or establish that any subscriber was the actual infringer.