Strike 3 Holdings, LLC v. Doe
- Alison Nathan
- 1:20-cv-06596
- U.S. District Court · Southern District of New York
- 10
In Strike 3 Holdings v. Doe, Judge Nathan granted early discovery allowing a subpoena to identify the defendant in a copyright case.
Strike 3 Holdings, LLC was permitted to seek limited identifying information from Verizon Fios. The unidentified defendant was entitled to notice, 60 days to challenge the subpoena, and the opportunity to request anonymous litigation. Verizon Fios was required to preserve the information and withhold disclosure while a timely challenge was pending.
What happened
Strike 3 Holdings, LLC sued an unidentified defendant, called John Doe, alleging that the defendant’s Internet Protocol address was linked to the downloading and sharing of Strike 3’s copyrighted works through BitTorrent. Strike 3 asked to subpoena Verizon Fios before the parties’ required early case meeting so it could learn the defendant’s identity.
The court found good cause for the early subpoena. It concluded that Strike 3 had alleged a basic copyright-infringement case, requested only information needed to identify and serve the defendant, had no practical alternative to obtaining that information from the Internet service provider, and needed the information to continue the lawsuit. The court also found that the defendant’s privacy interest did not outweigh the need for the limited discovery.
Judge Alison J. Nathan granted the motion and allowed Strike 3 to serve Verizon Fios with a subpoena seeking only the defendant’s true name and current and permanent address. The order required notice to the defendant, gave the defendant and Verizon Fios 60 days to challenge the subpoena or request anonymous litigation, delayed disclosure while any challenge was pending, and limited Strike 3’s use of any information to protecting its rights in the lawsuit.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:20-cv-06596
- Alison Nathan
- Dec. 15, 2020
Background
Strike 3 Holdings, LLC alleged that an unidentified defendant, referred to as John Doe and identified only by Internet Protocol address 71.125.43.236, infringed Strike 3’s copyrighted works. Strike 3 stated that it operates three adult-film websites and that its forensic software, VXN Scan, tracked the Internet Protocol address while copyrighted works were downloaded and distributed through BitTorrent, a peer-to-peer file-sharing system.
Strike 3 moved ex parte, meaning without first notifying the opposing party, under Federal Rule of Civil Procedure 26(d)(1). It asked for permission to serve a Rule 45 subpoena on Verizon Fios, the Internet service provider associated with the Internet Protocol address, before the parties held the conference normally required by Rule 26(f). Strike 3 sought to use Verizon Fios’s subscriber records to identify the individual associated with the address.
Legal standard
Rule 26(d)(1) generally prevents parties from seeking discovery before the Rule 26(f) conference unless a court authorizes earlier discovery. The court applied a flexible “reasonableness and good cause” standard, with particularly careful review because Strike 3 requested the discovery ex parte.
The court considered five principal factors: (1) whether Strike 3 made a preliminary showing of copyright infringement; (2) whether the requested discovery was specific; (3) whether other ways existed to obtain the information; (4) whether the information was needed to advance the claim; and (5) the defendant’s expectation of privacy.
Analysis
The court found that Strike 3 made a preliminary, or prima facie, showing of copyright infringement. The complaint identified the copyrighted works and alleged how, when, and from which Internet Protocol address the works were copied using the specified technology. A prima facie showing is an initial showing sufficient to support the requested procedural relief; it is not a final determination that infringement occurred.
The court found the subpoena sufficiently specific because Strike 3 sought only the defendant’s true name and current and permanent address. It determined that Strike 3 had no other identified means to learn the defendant’s identity because BitTorrent provides substantial anonymity and only the Internet service provider could match the Internet Protocol address to subscriber information.
The court also found that the information was necessary for the case to proceed because Strike 3 could not identify or serve the defendant without it. It noted that subscriber information might be lost through routine deletion by the Internet service provider. Regarding privacy, the court acknowledged the possibility of public embarrassment but concluded that Internet service provider subscribers have only a minimal expectation of privacy in sharing copyrighted material.
Protective procedures and order
The court concluded that Strike 3 was entitled to serve the subpoena but imposed a protective order because of the risk of mistaken identification and the resulting potential for annoyance, embarrassment, oppression, or undue burden. Strike 3 could seek only the defendant’s true name and current and permanent address; it could not seek email addresses or telephone numbers through this subpoena.
Verizon Fios was required to serve the defendant with the subpoena, the order, and the attached notice within 60 days after receiving the subpoena. The defendant then had 60 days after receiving notice to file a motion to quash or modify the subpoena, or to request permission to litigate anonymously. Verizon Fios could not disclose identifying information to Strike 3 before that period expired. If a challenge was filed, disclosure had to wait until the court addressed the issues and issued an order allowing discovery to resume.
If no challenge was filed during the 60-day period, Verizon Fios would have 10 days to produce the responsive information. Verizon Fios was required to preserve subpoenaed information while any timely motion to quash was pending. Any information disclosed could be used by Strike 3 only to protect its rights in the lawsuit.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.