Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 172.220.54.197

Background

This omnibus order addresses substantively similar motions filed by Strike 3 Holdings, LLC in twenty-one District of Minnesota cases. The defendants were identified as John Doe subscribers associated with particular internet-protocol addresses. Strike 3 alleged 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 alleged that its proprietary infringement-detection system, called VXN, detected distribution from the listed IP addresses. Strike 3 said that it could not identify the defendants beyond their IP addresses, but that each defendant’s internet service provider could identify the subscriber by matching the IP address to a name and address.

Strike 3 asked for permission to serve a Federal Rule of Civil Procedure 45 subpoena on each internet service provider before the parties held the conference generally required by Rule 26(f). It sought limited, immediate discovery to learn each defendant’s identity, 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, an agreement, or a court order allows it. The court explained that expedited discovery may be appropriate when a defendant’s identity is unknown. Courts in the district generally apply a good-cause standard, asking whether the need for expedited discovery, in light of the administration of justice, outweighs prejudice to the responding party.

The court applied five factors: whether the plaintiff 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 to advance the claim; and the responding party’s expectation of privacy.

The court concluded that expedited discovery was warranted in all twenty-one cases because Strike 3 had stated an actionable copyright-infringement claim, the requests were limited to each defendant’s name and address, no alternative means of obtaining the information existed, the cases could not proceed without identifying the defendants, and appropriate privacy protections made Strike 3’s interest in pursuing its claims outweigh the subscribers’ privacy expectations. The court recognized that a subscriber might not be the actual infringer and that the allegations involved sensitive and potentially embarrassing subject matter.

Ruling and limits on discovery

The court granted each of the twenty-one ex parte motions for leave to serve a third-party subpoena before the Rule 26(f) conference, including the motion in No. 23-cv-2660 concerning the subscriber assigned IP address 172.220.54.197.

The order authorized Strike 3 to serve a Rule 45 subpoena on each defendant’s internet service provider seeking only the name and address of the subscriber assigned to the IP address during the periods of alleged infringement identified in the complaint. Each subpoena had to provide at least sixty days’ notice before production was required and could seek only one category of documents identifying the subscriber.

The internet service provider had fourteen days after service to notify the subscriber. The subscriber then had forty-five days from the notice date to seek a protective order, file a responsive pleading, or do both. Strike 3 had to serve the order with each subpoena, and the provider had to give the subscriber a copy of the order and certify that the required notice was provided.

Strike 3 could not publicly disclose information produced in response to the subpoenas until the defendant had an opportunity to ask to proceed anonymously and the court ruled on that request. If a defendant did not seek permission to proceed anonymously within forty-five days after the information was disclosed to Strike 3’s counsel, the limited protective order would expire. The court authorized no other discovery at that time. The order also required Strike 3 to file a status report in each case, without identifying information, by the date stated in the order.

What the order did not decide

The court did not enter judgment on the copyright claims and did not determine whether any subscriber was the person who infringed Strike 3’s copyrights. The ruling concerned only early, limited discovery and privacy protections.