Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 75.73.207.7

Background

Strike 3 Holdings, LLC filed twenty-one similar cases against unidentified John Doe defendants in the District of Minnesota. In this case, the defendant was identified in the caption by the IP address 75.73.207.7. 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 IP address, but that the internet service provider was the only party able to connect that address with a subscriber’s name and address.

Strike 3 asked for permission to serve a third-party subpoena on the internet service provider before the parties held the discovery conference ordinarily required by Federal Rule of Civil Procedure 26(f). Strike 3 sought the information to identify the defendant, 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 generally apply a good-cause standard, which asks whether the need for immediate discovery, considering the administration of justice, outweighs prejudice to the responding party. The court applied five factors: whether the plaintiff showed a concrete preliminary claim of actionable harm; whether the discovery request was specific; whether alternative ways 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. It concluded that Strike 3 had sufficiently alleged a copyright-infringement claim, that the request was limited to the defendant’s name and address, that there were no alternative ways to obtain the information, and that the case could not proceed without identifying the defendant. The court also concluded that Strike 3’s interest in pursuing its copyright claims outweighed the subscriber’s expectation of privacy when appropriate privacy protections were included.

The court recognized that the subscriber might not be the actual infringer and could be drawn into a case involving sensitive subject matter. It therefore imposed a limited protective order. The court’s analysis of Strike 3’s alleged copyright claim was for purposes of allowing discovery; the order did not determine liability or decide whether the subscriber infringed any copyright.

Order

For each of the twenty-one cases, including No. 23-cv-2951, Judge Dulce J. Foster granted Strike 3’s motion for leave to serve a third-party subpoena before the Rule 26(f) conference.

The subpoena may seek only the name and address of the subscriber assigned to the IP address identified in the complaint during the periods of alleged infringement. It must give the internet service provider at least sixty days before production is required and must be limited to one category of documents identifying the particular subscriber. The provider may seek a protective order if it has a legitimate basis.

The internet service 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 order with the subpoena, and the provider must provide the order with its notice to the subscriber. 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 directed Strike 3 to file a status report in each case concerning the progress of the authorized discovery without identifying the defendant.