Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, known only through the subscriber assigned Internet Protocol address 98.13.199.237, copied and distributed Strike 3’s copyrighted works without authorization. Strike 3 alleged that the address had been traced to New York, New York, and that the only way to identify Doe was through the internet provider associated with the alleged downloading and copying.

Strike 3 filed an ex parte motion for permission to serve a subpoena on Spectrum before the parties’ required conference under Federal Rule of Civil Procedure 26(f). The subpoena sought information identifying the subscriber associated with the IP address.

Reasoning

Under Rule 26(d)(1), discovery generally cannot begin before the Rule 26(f) conference unless a court authorizes it. The court applied a flexible good-cause and reasonableness standard, considering whether Strike 3 had shown a preliminary claim of actionable harm, whether its request was specific, whether other ways to obtain the information existed, whether the information was needed for the case to proceed, and the subscriber’s privacy interest.

The court found that each factor favored early discovery. It found that Strike 3 had made a preliminary showing of copyright infringement by alleging ownership of a valid copyright and that Doe copied elements of the work. It also found that the request was limited to the name and address of the owner of the specified IP address, that no alternative means of identifying Doe had been shown, and that Doe’s identity was needed for service and for the case to proceed. The court stated that ISP subscribers’ privacy interest in the sharing of copyrighted information was minimal.

The court also found good cause for 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.

Order

The court granted Strike 3’s motion. Strike 3 may serve Spectrum with a Rule 45 subpoena seeking John Doe’s true name and current and permanent address. The subpoena may not seek Doe’s email addresses or telephone numbers.

Spectrum must serve Doe with the subpoena, the order, and the attached notice within 60 days after being served. Doe has 60 days after receiving the subpoena and order to file a motion challenging it, including a motion to quash or modify. Spectrum may not disclose identifying information before that period ends or, if a challenge is filed, before the court resolves the challenge and authorizes disclosure. If no timely challenge is filed, Spectrum will have 10 days to provide the responsive information to Strike 3.

Doe may proceed anonymously unless and until the court orders otherwise. Spectrum must preserve subpoenaed information while any timely challenge is pending, may not charge a fee before providing the requested information, and may provide a billing summary and cost report if it later charges production costs. Strike 3 may use any disclosed information only to protect the rights asserted in its complaint. Strike 3’s time to serve the summons and complaint is extended to 45 days after receiving information from Spectrum, and Strike 3 must provide the court with status letters every 60 days until Doe answers or otherwise responds. The court directed the clerk to close the pending motion.