Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 107.2.73.133

Background

This omnibus order addresses 21 similar cases filed by Strike 3 Holdings, LLC in the District of Minnesota. In each case, Strike 3 sued a John Doe defendant whose identity was known only through an Internet Protocol address. 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 Internet Protocol address involved in each alleged infringement. It argued that the defendant’s internet service provider could identify the subscriber by matching the address to the subscriber’s name and address. Strike 3 therefore sought permission to serve a subpoena under Federal Rule of Civil Procedure 45 before the parties’ required Rule 26(f) conference. The requested discovery was intended to identify the defendant, investigate the alleged infringement, and allow service of the lawsuit.

Legal standard

Discovery generally cannot begin before the Rule 26(f) conference unless a court authorizes it. Courts in the district generally apply a good-cause standard to requests for expedited discovery. Under that standard, the need for immediate discovery must outweigh the prejudice to the responding party.

The court applied five factors drawn from Arista Records, LLC v. Doe: 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 case; and whether the request affected the defendant’s privacy interests.

Court’s analysis

The court found that expedited discovery was warranted in all 21 cases. It concluded that Strike 3 had sufficiently alleged a copyright-infringement claim, that the request was limited to each defendant’s name and address, and that no alternative means of obtaining the information had been identified. The court also concluded that the cases could not proceed without identifying the defendants.

The court acknowledged that an internet subscriber may not be the person who committed the alleged infringement. It also recognized the privacy concerns associated with the sensitive and potentially embarrassing subject matter. The court therefore allowed the discovery only with protections for the unnamed subscribers.

Order

For each of the 21 cases, including No. 23-cv-2659 involving the subscriber assigned Internet Protocol address 107.2.73.133, the court 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 the identified Internet Protocol address during the periods of alleged infringement listed in the complaint. It must provide at least 60 days’ notice before production is required and may request only one category of identifying documents. The internet service provider may seek a protective order if it has a legitimate basis to do so.

The provider must notify the subscriber within 14 calendar days after receiving the subpoena. The subscriber then has 45 calendar days from the notice date to seek a protective order, file a responsive pleading, or both. No other discovery was authorized at that time.

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 rules on that request. The protective order expires 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 order also required Strike 3 to file a status report in each case describing the progress of the authorized discovery without including the defendant’s identity.

The order concerns discovery and identification of the unnamed defendant; it does not decide whether the subscriber committed copyright infringement.