Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC filed a letter motion seeking permission to serve a third-party subpoena on Doe’s Internet service provider before the conference ordinarily required by Rule 26(f) of the Federal Rules of Civil Procedure. The subpoena sought information that could identify Doe. The opinion’s attached notice states that Strike 3 alleged Doe illegally downloaded or distributed copyrighted material and that Strike 3 knew the Internet Protocol address associated with the alleged activity but might not know Doe’s name or address.

Ruling on the Subpoena

The court concluded that Strike 3 satisfied the requirements for expedited discovery, relying substantially on the reasons stated in a prior opinion. It granted Strike 3’s motion for leave to serve a Rule 45 subpoena on Doe’s Internet service provider to obtain Doe’s identity. The court did not permit Strike 3 to subpoena Doe’s email address or telephone number.

Privacy and Notice Protections

The court found substantial privacy concerns because of the nature of the copyrighted material at issue and the risk that the Internet service provider could identify the wrong person. Doe could therefore proceed anonymously as John Doe unless the court ordered otherwise. The provider had 60 days after being served to give Doe the subpoena, the order, and the attached notice. Doe then had 60 days after receiving the subpoena and order to file a motion challenging the subpoena, including a motion to cancel or modify it.

The provider could not disclose Doe’s identifying information before that 60-day period ended. If Doe or the provider filed a motion to cancel or modify the subpoena, disclosure had to wait until the court addressed the motion and ordered the provider to resume producing the requested information. The provider also had to preserve subpoenaed information while a timely challenge was pending.

Other Case-Management Orders

The provider had to confer with Strike 3 about production costs and could not demand payment in advance. If it charged for production, it had to provide Strike 3 with a billing summary and cost report. Any information disclosed under the subpoena could be used only to protect Strike 3’s rights described in its complaint.

Strike 3 could not begin settlement discussions before serving the complaint without the court’s permission. If Doe initiated settlement discussions, Strike 3 could participate and settle the case. Strike 3’s deadline to serve the summons and complaint was extended to 45 days after Strike 3 received information from the provider. Strike 3 also had to submit a letter of no more than two pages every 60 days, until Doe answered or otherwise responded, describing its efforts to obtain the information and serve Doe. The court warned that missing these updates could result in dismissal for failure to prosecute.

Effect of the Order

Judge Jesse M. Furman granted the motion for expedited identification discovery while imposing privacy, notice, challenge, and use restrictions. The order did not decide whether Doe downloaded or distributed copyrighted material, whether Doe was correctly identified, or whether Strike 3 would ultimately prevail.