Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 23.88.157.125

Background

Strike 3 Holdings, LLC filed 21 similar copyright-infringement cases against unidentified John Doe defendants. In the case concerning IP address 23.88.157.125, 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 alleged that its infringement-detection system identified the IP address but that the internet service provider could identify the subscriber associated with that address.

Strike 3 filed an ex parte motion—meaning a motion made without advance participation by the opposing party—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). Strike 3 sought the subscriber’s name and address to identify the defendant, investigate the alleged infringement, and serve the defendant.

Court’s Analysis

The court applied the good-cause standard used in similar cases in the District of Minnesota. Under that standard, the need for early discovery must outweigh potential harm to the responding party. The court considered five factors: whether Strike 3 had shown a concrete initial claim of copyright infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and the subscriber’s privacy expectations.

The court concluded that early discovery was warranted. It found that Strike 3 had adequately alleged an actionable copyright-infringement claim, that the request was limited to each subscriber’s name and address, that no alternative way to obtain the information was available, and that the cases could not proceed without identifying the defendants. The court also recognized that the subscriber associated with an IP address might not be the actual infringer. It therefore found that Strike 3’s interest in pursuing its copyright claims outweighed the subscribers’ privacy expectations only with protective safeguards.

Order

For all 21 cases, including No. 23-cv-3265, the court granted Strike 3’s motions as set forth in the order’s protective conditions. Strike 3 may serve a Rule 45 subpoena on the relevant internet service provider seeking only the name and address of the subscriber assigned to the IP address during the periods identified in the complaint.

The subpoena must give at least 60 days’ notice before production is required and may request only one category of documents identifying the particular subscriber. The internet service 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 do both.

Strike 3 must serve the order with the subpoena, and the internet service provider must provide the order with its 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 rules on that request. The order also required a status report in each case, without identifying information, by the date stated in paragraph 27.