Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that an unidentified defendant used BitTorrent, a file-sharing system, to download and distribute Strike 3’s copyrighted works. Strike 3’s software recorded the Internet Protocol address associated with the alleged activity, but Strike 3 could not identify the person using that address. Strike 3 therefore moved under Federal Rule of Civil Procedure 26(d)(1) for permission to seek discovery before the parties’ required discovery conference.

Strike 3 sought to serve a Rule 45 subpoena on Verizon Fios, the Internet service provider associated with the Internet Protocol address. It asked for information that would identify and allow service on the defendant.

Legal standard

Rule 26(d)(1) generally prohibits discovery before the parties confer as required by Rule 26(f), unless the court authorizes earlier discovery. Courts apply a flexible good-cause and reasonableness standard, with particularly careful review when the request is made without advance notice to the opposing party. The court considered five factors: whether Strike 3 made an initial showing of infringement, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and the defendant’s expectation of privacy.

Analysis

The court held that Strike 3 made an initial showing of copyright infringement by identifying the copyrighted works and alleging how, when, and from which Internet Protocol address the defendant copied them. The court found the request sufficiently specific because it sought only the defendant’s true name and current and permanent address. It also found that BitTorrent’s anonymity left Strike 3 without another reliable way to identify the defendant and that the information was needed to serve the defendant and continue the case.

The court recognized that the alleged viewing of the copyrighted works could cause public embarrassment. It nevertheless concluded that Internet service subscribers have only a limited expectation of privacy in sharing copyrighted material. At the same time, the court found good cause for a protective order because of the risk of mistaken identification and the resulting risk of annoyance, embarrassment, pressure, or undue burden.

Ruling and procedures

The court granted Strike 3’s motion. It authorized Strike 3 to immediately serve Verizon Fios with a Rule 45 subpoena seeking only the defendant’s true name and current and permanent address. Strike 3 was not permitted to seek the defendant’s email addresses or telephone numbers through that subpoena.

Verizon Fios was ordered to notify the defendant within 60 days after receiving the subpoena. The defendant then had 60 days after receiving notice to challenge the subpoena, including by asking the court to cancel or change it, 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 was barred until the court issued a further order. If no challenge was filed, Verizon Fios had 10 days to produce the responsive information.

The order also required Verizon Fios to preserve the subpoenaed information, prohibited advance charges for producing it, and limited any information disclosed to Strike 3’s use in protecting the rights asserted in its complaint.