Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC filed an ex parte motion, meaning it asked the court to act before the opposing party participated, for permission to serve a third-party subpoena before the parties’ required conference under Rule 26(f) of the Federal Rules of Civil Procedure. The proposed subpoena sought information from the defendant’s internet service provider, Verizon Fios, to identify the name and address associated with an Internet Protocol address that Strike 3 alleged was used to infringe its copyrights.

Court’s Analysis

The court found good cause for expedited discovery, meaning discovery allowed before the usual schedule. It concluded that Strike 3 had made a preliminary showing of copyright infringement; sought only the defendant’s true name and address; appeared to have no alternative way to obtain the alleged infringer’s identity; and needed the information to advance its claim.

The court also found substantial privacy concerns because of the nature of the copyrighted material and the possibility that the internet service provider could falsely identify someone who was not responsible. The court therefore granted the motion subject to protective conditions. This order authorized limited identity-related discovery; it did not decide whether the defendant infringed Strike 3’s copyrights.

Order

Strike 3 may not begin settlement discussions before serving the complaint unless the court gives permission, although it may participate if the defendant initiates discussions. The defendant may proceed anonymously unless the court orders otherwise.

Within 14 days, Strike 3 may serve a Rule 45 subpoena on Verizon Fios seeking only the defendant’s name and address associated with the Internet Protocol address identified in the complaint. Strike 3 may not seek the defendant’s telephone number or email address. If another internet service provider is identified in response, Strike 3 may serve that provider in the same manner.

The provider must notify the defendant of the subpoena, the order, and the notice to the defendant. The defendant has 60 days after receiving notice to file a motion to challenge or change the subpoena, including a motion to cancel it or limit its scope. The provider may not disclose the information during that period, or while a timely challenge is pending. If no challenge is filed, the provider has 10 additional days to produce the requested information. The provider must preserve subpoenaed information while a timely challenge is pending, and any information disclosed may be used only to protect Strike 3’s rights in this case. Strike 3 must also file a status letter with the court on April 24, 2023.

Judge Stewart D. Aaron issued the order as a United States magistrate judge. The notice also states that the case is pending before United States District Judge Analisa Torres and was referred to Judge Aaron for general pretrial matters.