Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleges that John Doe downloaded, copied, and distributed Strike 3’s copyrighted movies in violation of the Copyright Act. Doe was identified in the complaint only by the Internet Protocol address 207.122.88.3. Strike 3 sought permission to serve a third-party subpoena on Lumen, Doe’s internet service provider, to obtain Doe’s name and address, investigate the alleged infringement, and serve the complaint.

Court’s analysis

The court applied the standard used for expedited discovery, meaning discovery allowed before the usual discovery process begins. It considered whether Strike 3 had shown a possible copyright claim, whether the request was specific, whether another way existed to obtain the information, whether the information was needed to move the case forward, and Doe’s privacy interests.

The court found that Strike 3 adequately described its copyrighted works and the alleged copying, including dates and times. It also found that the request was limited to the subscriber’s name and address, that Strike 3 had no other way to obtain Doe’s identity, and that the information was needed to serve Doe and pursue the case. The court recognized that identification in a case involving adult movies could cause embarrassment but found that the relevant privacy expectation was limited and that the protective procedures would address some privacy concerns.

Ruling and procedures

The court granted Strike 3’s motion for leave to serve Lumen with a third-party subpoena for Doe’s name and address. Strike 3 must attach the order and the “Notice to Defendant” to the subpoena, and it may not subpoena Doe’s phone number or email address.

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

Lumen must serve Doe with the subpoena, the order, and the notice within 60 days after receiving the subpoena. Doe then has 60 days after receiving those materials to file a motion challenging the subpoena, including a motion to cancel or change it. Lumen may not disclose Doe’s identifying information during that period or while a timely challenge remains unresolved. If no challenge is filed, Lumen has 10 days after the 60-day period ends to provide the responsive information to Strike 3. Lumen must preserve the information pending any timely challenge.

Any information disclosed may be used only to protect Strike 3’s rights described in the complaint. Strike 3’s deadline to serve the summons and complaint is extended to 45 days after it receives the information from Lumen. Strike 3 must also submit a status letter of no more than two pages every 60 days until Doe answers or otherwise responds; the court stated that missing those letters may result in dismissal for failure to prosecute. The clerk was directed to terminate Docket No. 9. The order did not decide whether Doe infringed Strike 3’s copyrights.