Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:23-cv-00581
- U.S. District Court · Southern District of New York
- 5
In Strike 3 Holdings v. Doe, Judge Broderick granted early subpoena discovery to identify an unknown copyright defendant, with protections for the subscriber.
Strike 3 Holdings may seek the identity and address associated with the specified Internet Protocol address. The affected internet subscriber receives notice and an opportunity to challenge the subpoena anonymously before disclosure, and the internet service provider must follow the order’s notice, nondisclosure, and preservation requirements.
What happened
Strike 3 Holdings, LLC sued John Doe for allegedly downloading and distributing its films through BitTorrent without permission. Doe was identified only by the Internet Protocol address allegedly connected to the activity.
Strike 3 asked to subpoena Doe’s internet service provider before the parties’ required discovery-planning conference. The court found that Strike 3 had stated a sufficient initial copyright claim and appeared to have no other way to learn Doe’s identity.
Judge Vernon S. Broderick granted the motion but required notice and an opportunity to challenge the subpoena anonymously before the subscriber’s information could be disclosed. The order also allowed the internet service provider to contest the subpoena and required it to preserve the information while any challenge was pending.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:23-cv-00581
- Vernon Broderick
- Feb. 21, 2023
Background
Strike 3 Holdings, LLC brought a direct copyright-infringement claim against John Doe. Strike 3 alleged that Doe used the BitTorrent file-sharing network to download and distribute its films without authorization. Doe was identified in the complaint only by the Internet Protocol address allegedly associated with the activity: 184.153.64.65.
Strike 3 moved for permission to serve a subpoena on Doe’s internet service provider before the parties held the conference required by Federal Rule of Civil Procedure 26(f). The subpoena sought the name and address associated with the Internet Protocol address.
Court’s Analysis
Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the Rule 26(f) conference unless the court authorizes it. The court applied a flexible standard requiring reasonableness and good cause. It found that Strike 3 had stated an initial copyright-infringement claim sufficient for this motion and appeared to have no other way to identify the alleged infringer. The court also noted that the litigation could not proceed unless Doe was identified.
The court recognized that the subscriber listed in an internet service provider’s records might not be the person who engaged in the alleged infringement. A single wireless router can serve multiple users, including people who are not the subscriber. The court therefore found it appropriate to protect the subscriber’s ability to challenge the subpoena before any identifying information was disclosed, particularly because the allegations involved downloading or distributing pornographic films.
Order
The court granted Strike 3’s motion for leave to serve a third-party subpoena, subject to specified procedures:
- Strike 3 could immediately serve the subpoena on the internet service provider under Federal Rule of Civil Procedure 45, seeking the name and address associated with Internet Protocol address 184.153.64.65. - Within 15 days after service, the internet service provider had to notify the affected subscriber and provide copies of the subpoena and the order. - The subscriber had 45 days after being served to file a motion contesting the subpoena, including a request to proceed anonymously. The internet service provider could not disclose information during that period. - If the 45-day period expired without a challenge, the internet service provider had 10 additional days to provide the information needed to comply with the subpoena. - The internet service provider could itself challenge the subpoena and had to avoid revealing the subscriber’s identifying information in its filings. - If a challenge was filed, the internet service provider could not disclose information until the court resolved the challenge and ordered disclosure. It also had to preserve the information while the challenge was pending.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.