Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, identified only as the subscriber assigned Internet Protocol address 74.68.104.4, copied and distributed Strike 3’s copyrighted works without authorization. Strike 3 alleged that the address had been traced to a location in New York, New York, and that it could identify Doe only through the internet service provider associated with the address. The opinion describes Strike 3 as an owner of adult films.

Strike 3 asked for permission to serve Spectrum, the identified internet service provider, with a subpoena before the parties held the discovery conference normally required by Federal Rule of Civil Procedure 26(f). A subpoena is a court-authorized demand for information from a person or entity that is not a party to the lawsuit.

Reason for Allowing Early Discovery

The court applied a flexible good-cause and reasonableness standard. It considered whether Strike 3 had shown an initial legally sufficient copyright claim, whether the request was specific, whether other ways existed to identify Doe, whether the information was needed for the case to proceed, and Doe’s privacy interest.

The court found that each factor favored the request. It found that Strike 3 had made an initial showing of copyright infringement by alleging ownership of a valid copyright and that Doe copied elements of the work. It found the request narrow because it sought the name and address of the subscriber assigned the specified IP address. It also found that subpoenaing Spectrum was the only available way to identify Doe, that Doe’s identity was needed to serve Doe and continue the case, and that the privacy interest of an internet subscriber in sharing copyrighted information was minimal.

Ruling and Conditions

The court granted Strike 3’s motion to serve a third-party subpoena on Spectrum before the Rule 26(f) conference. The subpoena could seek Doe’s true name and current and permanent address. It could not seek Doe’s email addresses or telephone numbers.

The court also granted a protective order because of the subject matter of the copyrighted material and the risk of falsely identifying a person based only on an IP address. Spectrum had 60 days after receiving the subpoena to serve Doe with the subpoena, the court’s order, and the attached notice. Doe then had 60 days after receiving those materials to file a motion challenging the subpoena, including a motion to cancel or change it. Spectrum could not provide identifying information to Strike 3 before that period ended. If Doe or Spectrum filed such a motion, Spectrum could not provide the information until the court resolved the issue and authorized production. If no challenge was filed during the 60-day period, Spectrum would have 10 days to provide the responsive information.

The court ordered Spectrum to preserve subpoenaed information while any timely challenge was pending. Doe could proceed anonymously unless the court later ordered otherwise. Any information disclosed could be used only to protect Strike 3’s rights described in its complaint. Strike 3’s deadline to serve the summons and complaint was extended to 45 days after Strike 3 received the information from Spectrum. Strike 3 also had to submit a status letter of no more than two pages by December 11, 2023, and every 60 days afterward until Doe answered or otherwise responded. The court warned that failure to submit the letters on time could result in dismissal for failure to prosecute. The court directed the clerk to terminate the motion at docket entry 9.