Strike 3 Holdings LLC v. Doe

Background

Strike 3 Holdings, LLC sued John Doe, identified in the case caption as the subscriber assigned Internet Protocol address 173.77.77.40. Strike 3 alleged that Doe downloaded and distributed its copyrighted content through a peer-to-peer file-sharing network. Because Strike 3 did not know Doe’s name, it moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a subpoena on Verizon Fios before the parties held the usual discovery conference.

Court’s analysis

Rule 26(d)(1) generally prevents a party from seeking discovery before the parties confer, unless the court authorizes earlier discovery. The court applied the Second Circuit’s five-factor test for “good cause”: whether the plaintiff has made a concrete initial showing of harm, whether the request is specific, whether other ways of obtaining the information exist, whether the information is needed to advance the claim, and the defendant’s expectation of privacy.

The court found that Strike 3 satisfied those factors. Strike 3 adequately alleged ownership of valid copyrights in its registered videos and alleged that Doe downloaded and distributed the works. A forensic expert’s declaration supported those allegations. The court also found the request sufficiently specific because it was limited to the subscriber’s name and address associated with the identified Internet Protocol address. It concluded that Verizon Fios was the only entity that could connect that address to a person’s identity and that the information was necessary for Strike 3 to serve Doe and pursue the case.

The court recognized that internet subscribers have a limited privacy interest in sharing copyrighted material. Because the allegations involved adult content, however, it found good cause for a protective order to address the risk of mistaken identification, embarrassment, or undue burden.

Ruling and procedures

The court granted Strike 3’s motion. It authorized Strike 3 to serve Verizon Fios with a Rule 45 subpoena seeking John Doe’s true name and current and permanent address. The subpoena could not request additional information, including an email address or telephone number.

Verizon Fios must serve Doe with the subpoena, the order, and the court’s notice within 60 days after the subpoena is served on Verizon Fios. Doe then has 60 days from receiving notice to file a motion challenging the subpoena, including a motion to cancel or modify it, or to ask to litigate anonymously. If Doe contests the subpoena, Verizon Fios must not release the contact information until the court rules on the challenge. If neither Doe nor Verizon Fios contests the subpoena within the 60-day period, Verizon Fios has 10 days to provide the responsive information. Strike 3 may use any disclosed information only to protect the rights described in its complaint. The clerk was directed to close the motion docket entry.