Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 74.38.33.32

Background

Strike 3 filed twenty-one similar copyright cases against unidentified John Doe defendants in the District of Minnesota. In the case concerning IP address 74.38.33.32, Strike 3 alleged that the defendant used the BitTorrent file-distribution protocol to download and distribute Strike 3’s copyrighted movies without permission. Strike 3 said its infringement-detection system identified the IP address but that the internet service provider was the only party able to connect the 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 conference normally required by Rule 26(f). The requested discovery was intended to identify the subscriber, investigate the alleged infringement, and allow Strike 3 to serve the defendant.

Legal standard and analysis

The court applied a good-cause standard for expedited discovery, meaning Strike 3 had to show that the need for immediate discovery outweighed potential prejudice to the responding party. The court considered five factors: whether Strike 3 had made a concrete initial showing of an actionable claim, whether the request was specific, whether other means existed to obtain the information, whether the information was needed to advance the case, and the subscriber’s privacy expectations.

The court concluded that expedited discovery was warranted in all twenty-one cases. It found that Strike 3 had sufficiently alleged ownership of copyrighted works, copying and distribution by each defendant, and lack of authorization. It also found that the requests were limited to each defendant’s name and address, that no alternative means of obtaining the information existed, and that the cases could not proceed without identifying the defendants. The court acknowledged that an internet subscriber might not be the actual infringer and that the subject matter could be sensitive and embarrassing.

Order

For the case involving IP address 74.38.33.32, 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 to the IP address during the periods of the alleged infringement. It must give the internet service provider at least sixty days’ notice before production is required and may cover only one category of documents identifying the particular subscriber.

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 to seek a protective order, file a responsive pleading, or both. No other discovery was authorized at that time.

Strike 3 must provide the order with the subpoena, and the provider must give the order and required 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 rules on that request. The order also required Strike 3 to file a status report in each of the twenty-one cases, without including identifying information. The order states that the status report was due February 5, 2023, a date that appears inconsistent with the order’s December 6, 2023 date.