Strike 3 Holdings, LLC v. Doe
- Analisa Torres
- 1:20-cv-06600
- U.S. District Court · Southern District of New York
- 8
In Strike 3 Holdings v. Doe, Magistrate Judge Lehrburger allowed identity discovery from Verizon Fios, while Judge Torres is the assigned district judge.
Strike 3 Holdings, LLC may seek John Doe’s name and address from Verizon Fios. John Doe may challenge or seek anonymous treatment of the subpoena, and Verizon Fios must follow the notice, preservation, and disclosure limits in the order.
What happened
In Strike 3 Holdings, LLC v. Doe, Strike 3 alleged that an unidentified internet subscriber illegally downloaded and distributed its copyrighted adult motion pictures. Strike 3 asked to subpoena the subscriber’s internet provider, Verizon Fios, for the subscriber’s name and address.
The court found that all five factors favored early discovery: Strike 3 had shown a preliminary copyright-infringement case, requested limited information, lacked another apparent way to identify the subscriber, needed the information to serve the defendant and pursue the case, and faced only a limited privacy concern under the court’s analysis.
Magistrate Judge Robert W. Lehrburger granted Strike 3 permission to serve the subpoena, subject to a protective order and procedures allowing John Doe 60 days to challenge it or seek anonymous treatment; the notice identifies Judge Analisa Torres as the district judge assigned to the case.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:20-cv-06600
- Analisa Torres
- Sept. 11, 2020
Background
Strike 3 Holdings, LLC, which the opinion describes as a company that owns adult motion pictures, filed a copyright-infringement action against John Doe, identified only by the internet protocol address 71.190.252.235. Strike 3 alleged that Doe downloaded and distributed its copyrighted motion pictures. Because Strike 3 did not know Doe’s name or address, it filed an emergency motion under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a third-party subpoena on Doe’s internet service provider, Verizon Fios.
Legal standard
Rule 26(d)(1) generally bars discovery before the parties’ required initial conference unless a court authorizes earlier discovery. The court applied a flexible “reasonableness and good cause” standard and considered five factors: whether Strike 3 had made a preliminary showing of infringement; whether the request was specific; whether other ways existed to obtain the information; whether the information was needed to advance the case; and Doe’s expectation of privacy.
Court’s analysis
The court found that the first factor favored Strike 3 because the complaint alleged ownership of valid copyrights and unauthorized copying, and described Strike 3’s detection system, the alleged downloading and distribution, the dates and times, the IP address, and the technology used.
The second factor favored Strike 3 because it limited the request to Doe’s true name and address. The third factor also favored Strike 3 because the opinion accepted its position that the internet service provider was the only entity able to connect the IP address to the subscriber. The fourth factor favored Strike 3 because it could not serve Doe or pursue its claims without the identifying information. The fifth factor favored Strike 3 because, although the court recognized the potential embarrassment associated with the copyrighted works, it relied on prior decisions finding that internet subscribers have a minimal expectation of privacy in sharing copyrighted material.
Ruling and safeguards
The order granted Strike 3’s motion to serve a Rule 45 subpoena on Verizon Fios for Doe’s true name and current and permanent address. Strike 3 was not permitted to subpoena Doe’s email addresses or telephone numbers. The court also found good cause for a protective order because of the risk of mistakenly identifying the wrong person.
Verizon Fios was required to notify Doe within 60 days after receiving the subpoena. Doe then had 60 days after receiving notice to move to quash or modify the subpoena or to request permission to proceed anonymously. Verizon Fios could not disclose identifying information before that period ended, or while a timely challenge was pending. If no challenge was filed, Verizon Fios would have 10 days to provide the responsive information. The provider was required to preserve the information, and any information disclosed could be used by Strike 3 only to protect the rights asserted in its complaint.
The order was signed by United States Magistrate Judge Robert W. Lehrburger. The attached notice identifies Analisa Torres as the United States District Judge assigned to the case.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.