Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC sued an individual identified as “John Doe, subscriber assigned IP address 98.116.188.212.” Strike 3 alleged that Doe used the BitTorrent protocol to download, copy, and distribute 37 of its copyrighted movies between June 3, 2020, and November 30, 2020. It sought copyright damages under 17 U.S.C. § 504.

Strike 3 asked for permission to obtain early discovery before the parties’ usual discovery conference. Specifically, it sought to serve Verizon Fios, which Strike 3 identified as the internet service provider associated with the IP address, with a subpoena for Doe’s name and address. Strike 3 relied on evidence from its infringement-detection system and a computer-forensics consultant, who stated that the IP address uploaded pieces of a file corresponding to one of the allegedly infringed works.

Court’s analysis

Federal Rule of Civil Procedure 26(d)(1) generally prevents discovery before the parties confer, unless the court authorizes it. The court applied five factors commonly used for early discovery in cases involving alleged online copyright infringement:

The court found that all five factors supported Strike 3. It concluded that Strike 3 had made a preliminary showing by asserting ownership of valid copyrights and presenting evidence of unauthorized copying of at least one film. The request was limited to Doe’s true name and address. The court also accepted the evidence that Verizon Fios was the only entity able to connect the IP address to its subscriber and that Strike 3 could not pursue the litigation without identifying the defendant. Finally, the court stated that internet subscribers have a minimal expectation of privacy in sharing copyrighted material.

The court also recognized a risk that the subscriber might not be the person who infringed the copyrights. Someone else with access to the internet connection could have been responsible. The court therefore imposed conditions intended to prevent harassment, unnecessary embarrassment, or premature disclosure.

Order

The court granted Strike 3’s application. Strike 3 may serve Verizon Fios with a subpoena for Doe’s name and mailing address only. It may not seek Doe’s email address and may not subpoena another internet service provider without another court order.

Strike 3 may use Doe’s name and address only for this litigation. It may not disclose or threaten to disclose identifying information, and it must file documents containing Doe’s name or other identifying information under seal. Once identified, Doe may continue litigating anonymously unless the court later orders otherwise after notice and an opportunity to challenge disclosure.

Verizon Fios must receive a copy of the order with the subpoena and must notify Doe within the required period. Doe has 30 days after receiving the subpoena and order to challenge the subpoena, including by asking the court to cancel or modify it. Verizon Fios may not provide identifying information before that period ends, or while a timely challenge is pending. Verizon Fios must preserve the information and follow the order’s requirements concerning production costs. The clerk was directed to close the motion at docket entry 6.

Ruling

Magistrate Judge Barbara Moses granted the motion for early discovery, subject to the stated notice, confidentiality, sealing, and challenge procedures.