Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.164.95.245

Background

The court issued one omnibus order addressing twelve cases filed by Strike 3 Holdings, LLC in the District of Minnesota. The cases involved John Doe defendants identified in the captions by the internet protocol addresses assigned to them. Strike 3 alleged that each defendant infringed its copyrights by downloading and distributing one or more of Strike 3’s copyrighted movies using the BitTorrent file-distribution protocol.

Strike 3 alleged that its proprietary infringement-detection system, called VXN, detected the alleged activity. Strike 3 said it could not identify the defendants by name, but that each defendant’s internet service provider could correlate the relevant internet protocol address with a subscriber’s name and address. The complaints differed in the internet protocol address, internet service provider, and number of works allegedly infringed.

The discovery request

Strike 3 filed substantially similar motions in all twelve cases seeking permission to serve a subpoena under Federal Rule of Civil Procedure 45 before the parties’ required Rule 26(f) conference. The requested discovery was limited to the subscriber’s name and address. Strike 3 said the information was needed to identify the defendants, investigate their alleged roles in the infringement, and serve them.

Court’s analysis

The court applied the good-cause standard typically used in the district for expedited discovery. Under that standard, the need for early discovery must outweigh the responding party’s potential prejudice. The court also applied five factors: whether Strike 3 showed a concrete initial claim of actionable harm; whether the request was specific; whether alternative means existed to obtain the information; whether the information was needed to advance the claims; and the subscriber’s expectation of privacy.

The court found expedited discovery warranted because Strike 3 had adequately alleged copyright infringement, the request sought only each defendant’s name and address, no alternative method was available to obtain the information, and the cases could not proceed without identifying the defendants. The court also found that Strike 3’s right to pursue its copyright claims outweighed the subscribers’ privacy interests, provided that privacy protections were imposed.

The court noted that a subscriber might not be the person who committed the alleged infringement and could be drawn into a case involving sensitive and potentially embarrassing subject matter. The order therefore included protections for the unnamed subscribers. The court did not decide whether any defendant actually infringed Strike 3’s copyrights.

Order

The court granted all twelve motions for leave to serve third-party subpoenas before the Rule 26(f) conference. Strike 3 may serve a Rule 45 subpoena on each relevant internet service provider seeking only the name and address of the subscriber assigned the internet protocol address during the periods of the alleged infringing activity identified in the complaint.

Each subpoena must give at least 60 days’ notice before production is required and must be limited to one category of documents identifying the particular subscriber. The internet service provider may seek a protective order if it has a legitimate basis.

Within 14 calendar days after receiving the subpoena, the internet service provider must notify the subscriber that Strike 3 sought the subscriber’s identity. 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 provide the order with the subpoena, and the internet service provider must provide the order with the notice.

Strike 3 may not publicly disclose information produced in response to the subpoena until the defendant has had an opportunity to ask to proceed anonymously and the court rules on that request. If the defendant does not seek permission to proceed anonymously within 45 calendar days after the information is disclosed to Strike 3’s counsel, the limited protective order expires. No other discovery was authorized at that time. Strike 3 also had to file a status report in each case by June 11, 2024, without including information about any defendant’s identity.