Strike 3 Holdings, LLC v. Doe
- Jesse Furman
- 1:22-cv-01621
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. Doe, Judge Furman granted expedited ISP subpoena discovery, preserved anonymity, and set protections for the unidentified defendant.
Strike 3 Holdings, LLC, John Doe, and John Doe’s internet service provider; the order permits identity discovery while protecting Doe’s anonymity and right to challenge the subpoena.
What happened
In Strike 3 Holdings, LLC v. John Doe, Strike 3 asked to subpoena Doe’s internet service provider before the required scheduling conference to learn Doe’s identity. The case concerns alleged downloading or distribution of copyrighted material associated with an Internet Protocol address.
The court granted permission to serve the subpoena for Doe’s identity but barred requests for Doe’s email address or telephone number. Doe may remain anonymous unless the court orders otherwise. The court also restricted settlement discussions before service of the complaint and set procedures protecting Doe’s opportunity to challenge the subpoena.
Judge Jesse M. Furman ordered the internet service provider to give Doe notice and wait 60 days before disclosing identifying information. The provider must preserve the information, and any disclosure may be used only to protect Strike 3’s rights stated in its complaint.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:22-cv-01621
- Jesse Furman
- Mar. 11, 2022
Background
Strike 3 Holdings, LLC filed a motion for permission to serve a third-party subpoena on John Doe’s internet service provider before the parties’ required conference under Rule 26(f) of the Federal Rules of Civil Procedure. The subpoena sought information identifying the subscriber assigned to Internet Protocol address 67.247.100.27. The notice attached to the order states that Strike 3 claims Doe illegally downloaded or distributed copyrighted material.
Ruling on the subpoena
The court concluded that Strike 3 satisfied the requirements for expedited discovery and granted the motion for permission to serve the subpoena to obtain Doe’s identity. The court did not permit Strike 3 to subpoena Doe’s email address or telephone number.
The court found substantial privacy concerns because of the nature of the copyrighted material and the risk that the internet service provider could falsely identify Doe. Strike 3 did not oppose anonymous litigation, so the court ordered that Doe may proceed anonymously unless and until the court orders otherwise.
Settlement restriction
Because Strike 3 stated that it does not begin settlement discussions before serving the complaint, the court ordered that Strike 3 may not initiate settlement discussions before service of the complaint without permission from the court. If Doe initiates settlement discussions, Strike 3 may participate and settle the case.
Notice and challenge procedures
The internet service provider must, within 60 days after being served with the subpoena, give Doe a copy of the subpoena, the order, and the attached notice. Doe then has 60 days after receiving the subpoena and order to file a motion contesting the subpoena, including a motion to quash or modify it. A motion to quash asks the court to cancel the subpoena; a motion to modify asks the court to change it.
The provider may not disclose Doe’s identifying information before that 60-day period ends. If Doe or the provider files a motion to quash or modify, the provider may not disclose information until the court resolves the issues and orders the provider to resume disclosure. The provider must preserve subpoenaed information while a timely challenge is pending.
The provider must confer with Strike 3 and may not require advance payment before producing requested information. If it charges production costs, it must provide Strike 3 with a billing summary and cost report. Information disclosed under the subpoena may be used only to protect Strike 3’s rights stated in its complaint. The clerk was directed to terminate ECF No. 7.
Disposition
Judge Jesse M. Furman granted Strike 3’s motion for expedited third-party subpoena discovery, subject to the limits and privacy protections in the order. The order did not decide whether Doe downloaded or distributed copyrighted material.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.