Strike 3 Holdings, LLC v. Doe
- Ronnie Abrams
- 1:21-cv-00262
- U.S. District Court · Southern District of New York
- 7
In Strike 3 Holdings v. John Doe, Judge Abrams granted discovery allowing Strike 3 to subpoena Verizon Fios for Doe’s name and address.
Strike 3 Holdings may seek John Doe’s name and address from Verizon Fios. John Doe may challenge the subpoena or seek to proceed anonymously, and Verizon Fios must follow the notice, preservation, and disclosure procedures in the order.
What happened
Strike 3 Holdings, LLC sued John Doe for allegedly downloading and distributing its copyrighted adult motion pictures. Doe was identified only by the Internet Protocol address associated with the alleged activity. Strike 3 asked to subpoena Doe’s internet provider, Verizon Fios, for Doe’s identity and address before the parties’ required initial conference.
The court found that all five factors favored early discovery: Strike 3 had shown an initial copyright-infringement claim, requested only specific identifying information, lacked another way to obtain it, needed the information to serve Doe and continue the case, and had to overcome only a limited privacy expectation in sharing copyrighted material.
Judge Ronnie Abrams granted the motion. Strike 3 may immediately serve a subpoena seeking Doe’s true name and current and permanent address, but not email addresses or telephone numbers. The order also requires notice to Doe and gives Doe and Verizon Fios opportunities to challenge the subpoena or seek anonymous treatment.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:21-cv-00262
- Ronnie Abrams
- Mar. 15, 2021
Background
Strike 3 Holdings, LLC alleged that John Doe downloaded and distributed Strike 3’s copyrighted adult motion pictures. Doe was identified in the complaint only through Internet Protocol address 68.132.236.195. Strike 3 alleged that its detection system, “VXN Scan,” identified the alleged use of the BitTorrent file-sharing network. The court did not decide the ultimate copyright-infringement claim.
Strike 3 filed an ex parte motion under Federal Rule of Civil Procedure 26(d)(1), which generally limits discovery before the parties’ initial conference. Strike 3 sought permission to serve a third-party subpoena under Rule 45 on Verizon Fios, identified as Doe’s internet service provider, to obtain Doe’s name and address.
Analysis
The court applied a flexible reasonableness-and-good-cause standard and considered five factors for early discovery:
- Initial showing of infringement. The court found that Strike 3 had made an initial showing because its complaint described the copyrighted works, including publication dates and registration information, and alleged unauthorized downloading and distribution.
- Specificity of the request. The requested discovery was limited to Doe’s name and address.
- Lack of alternative means. The court accepted Strike 3’s position that Verizon Fios was the only entity able to connect the IP address to the subscriber and identify Doe.
- Need for the information. Without the requested information, Strike 3 could not serve Doe and pursue the case.
- Privacy interests. The court recognized that identification in a case involving adult movies could cause embarrassment, but concluded that an ISP subscriber has a minimal expectation of privacy in sharing copyrighted material.
Ruling and procedures
The court granted Strike 3’s motion. Strike 3 may immediately serve Verizon Fios with a Rule 45 subpoena seeking John Doe’s true name and current and permanent address. The subpoena may not seek Doe’s email addresses or telephone numbers.
The court ordered Verizon Fios to notify Doe within 60 days after being served with the subpoena by providing Doe with the subpoena, the order, and a notice. If that 60-day period expires without Doe or Verizon Fios contesting the subpoena, Verizon Fios must produce responsive information within 10 days. Doe may move to quash or modify the subpoena or seek to proceed anonymously; if Doe files such a motion, Verizon Fios must not release the contact information until the court rules.
The order also requires preservation of subpoenaed information while a timely challenge is pending, bars advance charges by Verizon Fios, limits any disclosed information to use in protecting Strike 3’s rights in this case, and adjourns the scheduled initial conference. The clerk was directed to terminate the pending motion.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.