Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.242.25.150

Background

Strike 3 Holdings, LLC filed twenty-one similar copyright cases against unidentified John Doe defendants. In this case, the defendant was identified in the caption by the internet-protocol address 73.242.25.150. Strike 3 alleged that the defendant used the BitTorrent file-distribution system to download and distribute Strike 3’s copyrighted movies without authorization. Strike 3 said its infringement-detection system identified the internet-protocol 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 third-party subpoena under Federal Rule of Civil Procedure 45 before the parties held the conference ordinarily required by Rule 26(f). The requested discovery was intended to identify the subscriber, allow Strike 3 to investigate the alleged infringement, and permit service of the lawsuit.

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, weighing whether the need for early discovery, considered against the administration of justice, outweighs prejudice to the responding party. The court applied five factors: whether the plaintiff showed a preliminary actionable claim, whether the request was specific, whether other 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 that the factors supported early discovery in all twenty-one cases. It concluded that Strike 3 had sufficiently alleged copyright ownership, copying and distribution by each defendant, and lack of authorization. The court also found that the request was limited to each subscriber’s name and address, that no alternative method was available, and that the cases could not proceed without identifying the defendants. The court recognized that an internet subscriber might not be the actual infringer and that the allegations involved sensitive subject matter, so it imposed privacy protections.

Order

For each of the twenty-one cases, including No. 23-cv-2661, the court granted Strike 3’s motion for leave to serve a third-party subpoena before the Rule 26(f) conference.

The authorized subpoena may seek only the name and address of the subscriber assigned to the relevant internet-protocol address during the periods of alleged infringement identified in the complaint. The subpoena must give the internet service provider at least sixty days’ notice before production is required and may request only one category of identifying documents. 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. Strike 3 must provide the provider with a copy of the order, and the provider must include it with the notice to the subscriber. 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 has ruled on that request. If the subscriber does not seek permission to proceed anonymously within forty-five days after the information is disclosed to Strike 3’s counsel, the limited protective order will expire. The order also required Strike 3 to file a status report in each case, without including information about the defendant’s identity.

This was a discovery ruling, not a final decision on whether the subscriber infringed Strike 3’s copyrights.