Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that “John Doe subscriber assigned IP address 108.21.0.192” infringed its copyrights in 52 adult motion pictures between March 18, 2020, and August 2, 2020. According to the complaint, Doe used the BitTorrent protocol to download, copy, and distribute the movies. Strike 3 sought damages under 17 U.S.C. § 504.

Strike 3 asked for permission to seek early discovery before the parties’ required discovery conference. Specifically, it sought a Rule 45 subpoena to Verizon Internet Services, which Strike 3 believed was the internet service provider associated with the IP address. The subpoena would seek Doe’s name and address so that Strike 3 could identify the defendant.

Strike 3 supported its request with evidence from its infringement-detection system and declarations from a computer-forensics consultant. The consultant stated that the IP address uploaded pieces of a file corresponding to one of Strike 3’s movies and that Verizon was the only entity able to connect the IP address to its subscriber.

Court’s analysis

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties confer, unless a rule, agreement, or court order permits it. The court applied a five-factor good-cause test used in similar cases involving anonymous internet copyright defendants:

The court found that all five factors favored Strike 3. It concluded that Strike 3 had made a preliminary showing of copyright infringement by asserting ownership of valid copyrights and unauthorized copying of at least one movie. The requested discovery was limited to Doe’s true name and address. The court accepted the consultant’s statement that Verizon was the only entity able to identify the subscriber and found that the case could not progress without that information. It also concluded that the subscriber had a minimal expectation of privacy in sharing copyrighted material.

The court cautioned, however, that the subscriber might not be the actual infringer. Someone else—such as a family member, houseguest, neighbor, or customer—could have used the internet connection. The court therefore imposed conditions intended to prevent harassment, embarrassment, or mistaken identification.

Order

The court granted Strike 3’s application. It authorized Strike 3 to serve Verizon with a Rule 45 subpoena seeking only Doe’s name and mailing address. Strike 3 could not seek Doe’s email address through the subpoena or otherwise, and it could not subpoena another internet service provider without another court order.

Strike 3 could use the identifying information only for this litigation. It could not disclose or threaten to disclose Doe’s name, address, or other identifying information, apart from the IP address. Once identified, Doe could continue litigating anonymously unless the court later ordered otherwise after Doe received notice and an opportunity to challenge disclosure. Documents containing Doe’s identifying information had to be filed under seal.

Verizon was required to serve Doe with the subpoena and the court’s order within 45 days after being served and at least 30 days before providing information to Strike 3. Doe then had 30 days to challenge or seek to modify the subpoena. Verizon could not provide the information during that period or while a timely challenge remained unresolved, and it had to preserve subpoenaed information. The court also directed Verizon to confer with Strike 3 before charging production costs and to provide a billing summary and cost report if it charged for production. The clerk was directed to close the motion at docket number 8.