Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC filed a copyright-infringement lawsuit against John Doe. Strike 3 alleged that Doe downloaded and distributed its adult motion pictures through the BitTorrent file-sharing network. Strike 3 said it identified Doe only through Internet Protocol address 98.15.76.224 and used a copyright-detection system called “VXN Scan.”

Strike 3 filed an ex parte motion, meaning a motion made without first giving the opposing party notice, under Federal Rule of Civil Procedure 26(d)(1). It asked for permission to serve Spectrum, Doe’s internet service provider, with a third-party subpoena under Rule 45. The subpoena sought information identifying Doe, specifically Doe’s true name and current and permanent address.

Legal standard

Rule 26(d)(1) generally prevents parties from seeking discovery before the parties hold the required Rule 26(f) conference, unless a court authorizes earlier discovery. Courts apply a flexible reasonableness-and-good-cause standard and consider five principal factors: whether the plaintiff has made a preliminary showing of infringement, whether the discovery request is specific, whether alternative ways exist to obtain the information, whether the information is needed to advance the claim, and the defendant’s expectation of privacy.

Court’s analysis

The court found that all five factors favored Strike 3. First, the complaint described the copyrighted works and alleged unauthorized copying, which the court found sufficient to make a preliminary showing of copyright infringement. Second, the request was narrow because it sought only Doe’s name and address. Third, the court found that Spectrum was the only entity able to connect the IP address to its subscriber. Fourth, without the information, Strike 3 could not serve Doe or pursue the lawsuit. Fifth, although the court recognized that Doe’s alleged viewing of the works could cause public embarrassment, it found that internet-service-provider subscribers have only a minimal expectation of privacy in sharing copyrighted material.

Order and safeguards

The court granted Strike 3’s motion and authorized immediate service of a Rule 45 subpoena on Spectrum. The subpoena may seek Doe’s true name and current and permanent address, but it may not seek Doe’s email addresses or telephone numbers.

Spectrum must notify Doe within 60 days after being served with the subpoena by providing Doe with the subpoena, the order, and the attached notice. If Doe or Spectrum does not challenge the subpoena during that period, Spectrum will have 10 additional days to produce responsive information to Strike 3. Doe may move to quash or modify the subpoena, or seek to proceed anonymously, and Spectrum may not release Doe’s contact information while a timely challenge is pending. Spectrum must preserve subpoenaed information pending resolution of such a challenge.

The order also limits any information disclosed to Strike 3 to use for protecting the rights asserted in the complaint. The court adjourned the initial conference indefinitely and directed the Clerk to terminate the motions pending at Docket Entries 7 and 9. The order did not decide whether Doe actually infringed Strike 3’s copyrights.