Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.228.163.209

Background

Strike 3 Holdings, LLC filed twenty-one similar copyright-infringement cases against unidentified John Doe defendants. In the case involving IP address 73.228.163.209, Strike 3 alleged that the defendant used BitTorrent to download and distribute its copyrighted movies without authorization. Strike 3 said its infringement-detection system identified the IP address but that the Internet service provider was the only source able to connect that address to a subscriber’s name and address.

Strike 3 asked for permission to serve a subpoena under Federal Rule of Civil Procedure 45 before the parties held the usual Rule 26(f) discovery conference. It sought the subscriber’s identity so it could investigate the alleged infringement and serve the defendant.

Court’s analysis

The court applied the good-cause standard used for expedited discovery. Under that standard, the need to proceed quickly must outweigh the potential harm to the responding party. The court considered five factors: whether Strike 3 showed an initial actionable claim, whether the request was specific, whether another way existed to obtain the information, whether the information was needed to advance the case, and the subscriber’s privacy interest.

The court concluded that expedited discovery was warranted. It found that Strike 3 sufficiently alleged ownership of copyrighted works, unauthorized copying and distribution, and the absence of authorization. The court also found that the request was limited to the subscriber’s name and address, that no alternative means existed to obtain the information, and that the case could not proceed without identifying the defendant. The court recognized that an IP-address subscriber might not be the person who infringed the copyrights, particularly because the allegations involved sensitive subject matter.

Order

For No. 23-cv-3270, the court granted Strike 3’s ex parte motion for leave to serve a third-party subpoena before the Rule 26(f) conference. The order also granted the substantially identical motions in the other twenty cases.

The authorized subpoena may seek only the name and address of the subscriber assigned to the IP address during the periods identified in the complaint. It must provide at least sixty days’ notice before production is required and may request only one category of documents. The Internet service provider must notify the subscriber within fourteen days after receiving the subpoena. The subscriber then has forty-five days from notice to seek a protective order, file a responsive pleading, or do both.

The order prohibits Strike 3 from publicly disclosing information produced in response to the subpoena until the defendant has had an opportunity to ask to proceed anonymously and the court rules on that request. No other discovery was authorized at that time.