Strike 3 Holdings, LLC v. Doe
- Philip Halpern
- 7:20-cv-10747
- U.S. District Court · Southern District of New York
- 9
In Strike 3 Holdings v. Doe, Judge Halpern authorized limited discovery from Verizon Fios to identify the unknown defendant in a copyright case.
Strike 3 Holdings, LLC may obtain limited identifying information from Verizon Fios about the unknown defendant. The defendant receives notice and an opportunity to challenge or limit the subpoena, and Verizon Fios must preserve the information and follow the order’s disclosure procedures.
What happened
Strike 3 Holdings, LLC sued an unidentified John Doe, alleging that the person assigned Internet Protocol address 72.69.197.14 downloaded and distributed 27 copyrighted adult motion pictures using BitTorrent.
The company asked to serve Verizon Fios, the Internet service provider, with a subpoena before the parties’ required initial conference. The court found good cause for this limited discovery because Strike 3 stated a preliminary copyright claim, requested only the defendant’s name and addresses, had no apparent alternative way to identify the defendant, needed the information to serve the lawsuit, and outweighed the defendant’s limited privacy interest.
Judge Philip M. Halpern granted the application. Strike 3 may subpoena the defendant’s true name and current and permanent addresses, but not email addresses or telephone numbers. The order gives the defendant and Verizon Fios 60 days to challenge the subpoena and requires protections concerning notice, confidentiality, and use of the information.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 7:20-cv-10747
- Philip Halpern
- Mar. 1, 2021
Background
Strike 3 Holdings, LLC brought a copyright-infringement lawsuit against a presently unknown John Doe subscriber assigned Internet Protocol address 72.69.197.14. Strike 3 alleged that the defendant downloaded and distributed 27 of its copyrighted works through BitTorrent. The defendant’s name was not known.
Strike 3 asked for permission to serve Verizon Fios, the defendant’s internet service provider, with a subpoena before the parties held the conference normally required by Federal Rule of Civil Procedure 26(f). The requested subpoena sought information identifying the defendant.
Court’s Analysis
Federal Rule of Civil Procedure 26(d)(1) generally prohibits discovery before the Rule 26(f) conference unless a court authorizes it. The court applied a flexible reasonableness and good-cause standard and considered five factors used for early discovery in copyright cases:
- Whether the plaintiff made a concrete preliminary showing of a legally actionable claim.
- Whether the discovery request was specific.
- Whether there were alternative ways to obtain the information.
- Whether the information was needed to pursue the claim.
- The defendant’s expectation of privacy.
The court found that Strike 3 satisfied all five factors. Strike 3 alleged ownership and registration of the copyrights and alleged that the defendant copied and distributed the works without authorization. Its request was limited to the defendant’s true name and address. The court accepted Strike 3’s position that Verizon Fios was the only entity able to connect the IP address to the subscriber assigned that address during the relevant period. The information was necessary to serve the lawsuit. Although the subject matter could cause embarrassment, the court concluded that Strike 3’s interest in identifying the defendant outweighed the defendant’s privacy interest.
The court also recognized the risk of false identification and the possibility that an innocent person could face pressure to settle because of the allegations. It therefore found good cause for a protective order concerning the subpoena and the information produced.
Order
The court granted Strike 3’s application. Strike 3 may immediately serve Verizon Fios with a Federal Rule of Civil Procedure 45 subpoena seeking the defendant’s true name and current and permanent addresses. Strike 3 may not seek the defendant’s email addresses or telephone numbers through this order.
The subpoena must include the court’s order and a notice to the defendant, and Strike 3 must file proof of service. Verizon Fios has 60 days after being served to notify the defendant and provide the required materials. 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. If no challenge is filed, Verizon Fios has 10 days after the applicable 60-day periods expire to produce responsive information.
The order also requires Verizon Fios to preserve subpoenaed information, bars advance charges for producing it, and limits any information disclosed to Strike 3’s protection of its rights in the lawsuit. Judge Philip M. Halpern directed the Clerk to terminate the pending motion.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.