Strike 3 Holdings, LLC v. Doe
- Lewis Kaplan
- 1:23-cv-05436
- U.S. District Court · Southern District of New York
- 8
In Strike 3 Holdings v. John Doe, Judge Parker granted early discovery to identify the defendant through Verizon Fios.
Strike 3 Holdings, LLC may seek John Doe’s name and address from Verizon Fios. John Doe receives notice and an opportunity to challenge the subpoena or request anonymity, while Verizon Fios must preserve the information and follow the order’s disclosure procedures.
What happened
Strike 3 Holdings, LLC v. John Doe is a copyright case in which Strike 3 said someone using a particular internet address downloaded and shared its adult movies. Strike 3 knew the person only through that address and asked to identify the subscriber.
Strike 3 asked for permission to subpoena Verizon Fios before the parties’ usual early case meeting. The court found that Strike 3 had adequately described its copyrighted works and alleged copying, and that Verizon Fios was the only identified source for the subscriber’s name and address. The requested information was limited to the defendant’s name and address.
Judge Parker granted the request. Strike 3 may immediately serve the subpoena, but Verizon Fios must give John Doe 60 days’ notice and may not disclose identifying information during that period. John Doe may challenge the subpoena or ask to proceed anonymously, and any disclosed information may be used only for purposes connected to Strike 3’s lawsuit.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:23-cv-05436
- Lewis Kaplan
- July 21, 2023
Background
Strike 3 Holdings, LLC sued John Doe, identified in the complaint only by the Internet Protocol address 100.2.212.142. Strike 3 alleged that the defendant used the BitTorrent file-sharing network to download and distribute Strike 3’s copyrighted adult motion pictures. Because Strike 3 did not know the defendant’s name, it moved for permission to serve an early subpoena on Verizon Fios, the defendant’s internet service provider.
Legal standard
Under Federal Rule of Civil Procedure 26(d)(1), discovery ordinarily cannot begin before the parties meet as required by Rule 26(f), unless the court permits it. The court applied a flexible reasonableness and good-cause standard. It considered whether Strike 3 had shown a sufficient initial basis for its copyright claim, whether the subpoena was specific, whether other ways existed to identify the defendant, whether the information was needed to continue the case, and the defendant’s privacy expectations.
Analysis
The court found that all five factors favored expedited discovery. First, Strike 3 sufficiently described its original copyrighted works and gave details about the alleged copying, including dates and times. Second, the proposed subpoena was limited to the defendant’s name and address. Third, the court found that Verizon Fios appeared to be the only entity able to connect the identified Internet address to a person. Fourth, Strike 3 asserted that without the information it could not serve the defendant or continue the lawsuit, and that some provider records might be kept only briefly. Finally, although identification in a case involving adult movies could cause embarrassment, the court found that internet subscribers have only a minimal privacy expectation in sharing copyrighted material.
The court also found good cause for a protective order because of the risk of mistaken identification and the resulting annoyance, embarrassment, oppression, or undue burden.
Order
The court granted Strike 3 permission to immediately serve a subpoena under Rule 45 on Verizon Fios for John Doe’s true name and current and permanent address. Strike 3 was not permitted to subpoena email addresses or telephone numbers.
Verizon Fios must give John Doe 60 days after receiving the subpoena to contest it. During that period, Verizon Fios may not disclose identifying information to Strike 3. John Doe may move to quash or modify the subpoena, or request permission to litigate anonymously. If a challenge is filed, Verizon Fios must wait for further court instructions before producing information. If no challenge is filed during the 60-day period, Verizon Fios has 10 days to produce the responsive information.
The order also required Verizon Fios to preserve the information, set procedures for production costs, and required Strike 3 to use any information disclosed only to protect the rights asserted in its complaint. Judge Katharine H. Parker issued the order.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.