Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC moved under Federal Rule of Civil Procedure 26(d)(1) for permission to serve a third-party subpoena—a legal demand for information directed to someone who is not a party to the lawsuit—on John Doe’s internet service provider, Astound Broadband LLC. Strike 3 sought to learn Doe’s identity so that it could identify and serve him in this case.

The notice attached to the order states that Strike 3 alleges Doe illegally downloaded and/or distributed copyrighted material. The notice also states that Strike 3 knows the Internet Protocol address associated with the alleged activity but may not know Doe’s actual name or address. The opinion does not decide whether Doe engaged in that conduct or whether Strike 3 will prevail on its copyright claims.

Court’s Analysis

Because the request was made before the parties’ required discovery-planning conference, the court applied a flexible reasonableness-and-good-cause standard for expedited discovery. The court considered factors including whether Strike 3 had made a concrete initial showing of actionable harm, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the claim, and Doe’s privacy expectations.

The court concluded that Strike 3 satisfied the requirements for early discovery. It emphasized that Strike 3 sought only Doe’s true name and permanent address, which the court described as a limited and highly specific set of facts. The court also found that Strike 3 appeared unable to identify Doe or serve him without the requested discovery.

The court nevertheless noted privacy concerns because of the nature of the copyrighted material and the risk that the internet service provider might identify the wrong person. The order also noted Strike 3’s statement that it has a policy of entering confidentiality agreements with defendants and agreeing to requests for orders protecting a defendant’s identity.

Order

The court granted Strike 3’s motion for leave to serve a subpoena under Federal Rule of Civil Procedure 45 on Astound Broadband LLC to obtain Doe’s name and address. The court did not permit Strike 3 to subpoena Doe’s email address or telephone number.

The order allows Doe to proceed anonymously unless and until the court orders otherwise. Strike 3 may not begin settlement discussions before serving the complaint without the court’s permission, although it may participate in settlement discussions if Doe initiates them.

The provider must notify Doe within 60 days after receiving the subpoena by giving him the subpoena, the order, and the attached notice. Doe then has 60 days after receiving that material to file a motion challenging the subpoena, including a motion to cancel or change it. The provider may not disclose identifying information before that period ends, or while a timely challenge is pending unless the court later directs disclosure. The order also requires preservation of the information, limits its use to protecting Strike 3’s rights in the complaint, addresses possible production charges, and requires Strike 3 to file a status letter by March 8, 2024. The clerk was directed to close the motion at docket entry 8.