Strike 3 Holdings, LLC v. Doe
- Paul Crotty
- 1:21-cv-10092
- U.S. District Court · Southern District of New York
- 6
In Strike 3 Holdings v. Doe, Judge Parker granted early discovery so Strike 3 could identify the anonymous defendant in its copyright case.
Strike 3 may issue a limited subpoena to RCN to obtain John Doe’s name and addresses. RCN must notify Doe and preserve the information, while Doe may challenge the subpoena or request permission to proceed anonymously before any identifying information is released.
What happened
Strike 3 Holdings, LLC sued John Doe, identified only by an internet protocol address, alleging that Doe used BitTorrent to download and distribute Strike 3’s copyrighted adult movies. Strike 3 asked to subpoena RCN, the internet service provider, before the parties’ usual discovery conference so it could learn Doe’s identity.
The court granted Strike 3’s request. It found that Strike 3 had adequately described a possible copyright violation, that the requested name and address were specific, that RCN was the only entity likely able to identify Doe from the internet protocol address, and that the information was needed to continue the case. The court did not permit Strike 3 to seek Doe’s email addresses or telephone numbers.
Judge Katharine H. Parker also imposed protections: RCN must notify Doe, and Doe or RCN has 60 days to challenge the subpoena or ask to proceed anonymously before RCN may release identifying information. The information may be used only to protect Strike 3’s rights in this lawsuit.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:21-cv-10092
- Paul Crotty
- Dec. 6, 2021
Background
Strike 3 Holdings, LLC alleged that John Doe, identified in the complaint only through internet protocol address 207.237.93.111, used the BitTorrent file-distribution network to download and distribute Strike 3’s copyrighted adult motion pictures. Strike 3 filed the copyright case and moved for permission to obtain early discovery from RCN, an internet service provider, before the parties held their required discovery conference. The requested discovery was intended to identify Doe so that Strike 3 could serve the defendant.
Legal standard
Under Federal Rule of Civil Procedure 26(d)(1), parties generally may not seek discovery before the Rule 26(f) conference unless the court permits it. The court applied a flexible reasonableness and good-cause standard. It considered five principal factors: whether Strike 3 made an initial showing of copyright infringement, whether the requested discovery was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and Doe’s privacy expectation.
Analysis
The court concluded that all five factors favored early discovery. First, it found that Strike 3 made an initial showing of infringement by describing its original copyrighted works and providing details about the alleged copying, including dates and times. Second, the court understood the proposed subpoena to seek only Doe’s name and address, which it considered a limited and specific request. Third, the court found that RCN appeared to be the only entity able to connect the internet protocol address to Doe’s identity. Fourth, the court found that without the subpoena Strike 3 could not serve Doe or continue the litigation, and noted Strike 3’s assertion that some provider records might be deleted after a short period. Finally, although identification could cause embarrassment in a case involving adult movies, the court found that internet subscribers have a limited privacy expectation concerning the sharing of copyrighted material.
Order
The court granted Strike 3 permission to immediately serve RCN with a subpoena under Rule 45 for Doe’s true name and current and permanent address. Strike 3 was not permitted to subpoena Doe’s email addresses or telephone numbers.
The court also entered a protective order. RCN must serve Doe with the subpoena, the order, and a notice within 60 days after being served. Doe then has 60 days from service to file a motion challenging the subpoena, including a request to quash or modify it, or to ask to litigate anonymously. RCN may not release identifying information before that period ends. If Doe or RCN files a timely challenge, RCN may not release the information until the court resolves the issue and orders RCN to proceed. If no challenge is filed, RCN has 10 days after the 60-day period to provide the responsive information to Strike 3. RCN must preserve the information while any timely challenge is pending, and any information disclosed may be used only to protect Strike 3’s rights stated in its complaint.
Judge Katharine H. Parker signed the memorandum order and granted the motion for early discovery.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.