Strike 3 Holdings, LLC v. Doe
- Vernon Broderick
- 1:23-cv-09568
- U.S. District Court · Southern District of New York
- 4
In Strike 3 Holdings v. Doe, Judge Broderick granted early subpoena discovery, with protections allowing the internet subscriber to challenge disclosure anonymously.
Strike 3 Holdings, LLC may obtain early discovery from the defendant’s internet service provider, while the unidentified internet subscriber receives notice and an opportunity to challenge the subpoena or seek anonymous litigation before any identifying information is disclosed.
What happened
Strike 3 Holdings, LLC sued an unidentified defendant, identified by an internet protocol address, alleging that the defendant used BitTorrent to download and distribute its films without permission. Strike 3 asked to subpoena the defendant’s internet service provider before the parties held their required initial conference.
The court found that Strike 3 had presented a preliminary copyright-infringement claim and appeared to have no other way to learn the defendant’s identity. The court also recognized that the subscriber listed in the provider’s records might not be the person who used the internet connection, so it created procedures to protect the subscriber’s privacy.
Judge Vernon S. Broderick granted Strike 3’s motion. The provider must notify the subscriber, who has 45 days to challenge the subpoena or ask to proceed anonymously; the provider may not disclose identifying information while a challenge is pending.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:23-cv-09568
- Vernon Broderick
- Jan. 29, 2024
Background
Strike 3 Holdings, LLC alleged that an unidentified defendant used the BitTorrent file-sharing network to download, copy, and distribute Strike 3’s films without authorization. Strike 3 asserted a direct copyright-infringement claim. Because Strike 3 did not know the defendant’s identity, the complaint identified the defendant as “John Doe” and by the internet protocol address allegedly associated with the activity: 108.46.246.48.
Strike 3 moved for permission to serve a subpoena on the defendant’s internet service provider before the parties’ required conference under Federal Rule of Civil Procedure 26(f). The subpoena sought the name and address associated with the internet protocol address.
Court’s Analysis
Federal Rule of Civil Procedure 26 generally bars discovery before the Rule 26(f) conference unless the court permits it. The court applied a flexible standard asking whether early discovery was reasonable and supported by good cause. It found that Strike 3 had stated a preliminary claim of copyright infringement sufficient for this motion and appeared to have no other way to identify the alleged infringer.
The court also recognized the risk that the person or entity listed in an internet service provider’s billing records might not be the person who engaged in the alleged conduct. A single wireless router can serve multiple users, including neighbors, passers-by, or members of the public using a network at a café or airport. The court therefore concluded that the subscriber should have an opportunity to challenge the subpoena before the provider disclosed identifying information.
Ruling and Procedure
The court GRANTED Strike 3’s Motion for Leave to Serve a Third-Party Subpoena, subject to specified protections. Strike 3 may immediately serve the subpoena under Rule 45, and it must attach a copy of the order.
The internet service provider must serve the affected subscriber with the subpoena and the order within 15 days after receiving the subpoena. The subscriber then has 45 days after service to file a motion challenging the subpoena, including a request to litigate anonymously. The provider may not disclose subpoenaed information during that period.
If the 45-day period expires without a challenge, the provider must produce the information needed to comply with the subpoena within 10 days. The provider may also challenge the subpoena, but its filings must not disclose the subscriber’s identifying information to Strike 3. If any challenge is filed, the provider must preserve the information and may not disclose it unless and until the court resolves the challenge and orders disclosure.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.