Strike 3 Holdings, LLC v. Doe
- Philip Halpern
- 7:20-cv-06604
- U.S. District Court · Southern District of New York
- 9
Strike 3 Holdings v. John Doe: Judge Halpern granted permission to seek Doe’s identity from Verizon Fios before the required discovery conference.
Strike 3 Holdings, LLC may seek the unknown subscriber’s identifying information from Verizon Fios. The subscriber may challenge or seek confidential treatment of the subpoena, and Verizon Fios must follow the notice, preservation, and disclosure procedures in the order.
What happened
In Strike 3 Holdings, LLC v. John Doe, Strike 3 alleged that the unknown subscriber assigned Internet Protocol address 100.37.133.120 downloaded and distributed at least 36 copyrighted adult movies using BitTorrent. The plaintiff asked to subpoena the subscriber’s Internet Service Provider, Verizon Fios, before the parties held the required discovery conference.
The court found good cause for this limited early discovery. It concluded that Strike 3 had adequately alleged a copyright claim, requested only the subscriber’s true name and current and permanent address, lacked another stated way to obtain that information, needed it to serve the lawsuit, and had shown that the plaintiff’s interest outweighed the subscriber’s limited privacy interest.
Judge Philip M. Halpern granted the application. Strike 3 may immediately serve Verizon Fios with a subpoena for the identifying information, but not the subscriber’s email addresses or telephone numbers. The order also protects the information and gives the subscriber and Verizon Fios 60 days to challenge the subpoena before any disclosure.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 7:20-cv-06604
- Philip Halpern
- Oct. 20, 2020
Background
Strike 3 Holdings, LLC sued a presently unknown defendant identified in the complaint by the Internet Protocol address 100.37.133.120. Strike 3 alleged that the defendant downloaded and distributed at least 36 of its copyrighted works through BitTorrent without authorization. The plaintiff sought permission to serve Verizon Fios, the defendant’s Internet Service Provider, with a subpoena before the parties’ required discovery conference under Federal Rule of Civil Procedure 26(f).
Legal Standard and Analysis
The court applied a flexible “reasonableness and good cause” standard for discovery before the Rule 26(f) conference. It considered five factors used in copyright cases: whether the plaintiff made a concrete initial showing of harm, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and the defendant’s expectation of privacy.
The court found that all five factors favored early discovery. First, it determined that Strike 3 had alleged the basic elements of copyright infringement: ownership of valid copyrights and unauthorized copying and distribution of original works. Second, the request was limited to the defendant’s true name and current and permanent address. Third, Strike 3 represented that Verizon Fios was the only entity able to connect the Internet Protocol address to the subscriber. Fourth, the information was necessary to serve the defendant. Fifth, the court concluded that the plaintiff’s interest in identifying the subscriber outweighed the subscriber’s limited privacy interest in sharing copyrighted material.
The court also recognized the risk that an Internet subscriber might not be the person who downloaded or distributed the material and that disclosure could pressure an innocent person to settle. Because of that risk and the subject matter of the allegations, the court found good cause for a protective order concerning the subpoena and the identifying information.
Order
The court granted Strike 3’s application. Strike 3 may immediately serve a Federal Rule of Civil Procedure 45 subpoena on Verizon Fios to obtain the defendant’s true name and current and permanent address. The subpoena may not seek the defendant’s email addresses or telephone numbers, and Strike 3 must attach the order and the required notice to the defendant.
Verizon Fios must notify the defendant within 60 days after receiving the subpoena. The defendant then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to quash or modify it. Verizon Fios may not disclose identifying information before that period ends, or while a timely challenge is pending, unless the court orders disclosure. If no challenge is filed, Verizon Fios has 10 additional days to produce responsive information.
The order permits the defendant to seek anonymity and requires Verizon Fios to preserve subpoenaed information while a timely challenge is pending. Any information disclosed may be used only to protect Strike 3’s rights in this lawsuit. The clerk was directed to terminate the pending motion sequence. This order authorized limited discovery and did not decide whether the defendant infringed Strike 3’s copyrights.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.