Strike 3 Holdings,LLC v. Doe

Background

Strike 3 Holdings, LLC brought a copyright-infringement action against John Doe, whom it identified only through the internet protocol address 69.113.185.63. Strike 3 alleged that Doe used the BitTorrent file-distribution network to download and distribute Strike 3’s copyrighted adult motion pictures.

Strike 3 moved without notifying Doe for permission to serve a subpoena before the parties’ required discovery conference. The requested subpoena was directed to CSC Holdings LLC, doing business as Optimum Online, identified as Doe’s internet service provider. Strike 3 said Optimum Online could identify Doe by matching the internet address to its subscriber information.

Legal standard

Federal Rule of Civil Procedure 26(d)(1) generally prevents parties from seeking discovery before the Rule 26(f) conference unless the court allows it. The court applied a flexible good-cause standard and considered five factors: whether Strike 3 made an initial showing of infringement; whether the requested discovery was specific; whether other ways of obtaining the information existed; whether the information was needed to move the case forward; and Doe’s expectation of privacy.

Analysis

The court concluded that all five factors favored early discovery. First, it found that Strike 3 had made an initial showing of copyright infringement by describing its original copyrighted works and providing details about how and when Doe allegedly copied them. Second, Strike 3 limited the requested information to Doe’s name and address.

The court also found that Optimum Online was the only identified entity able to match the internet address to a subscriber and that Strike 3 could not pursue the litigation without knowing Doe’s identity. Finally, relying on prior decisions, the court found that an internet subscriber who shares copyrighted material has only a minimal expectation of privacy in that conduct.

The court separately found good cause for a protective order. It cited the substantial risk of mistaken identification and the potential for annoyance, embarrassment, oppression, or undue burden or expense.

Order and practical effect

The court granted Strike 3 permission to serve Optimum Online with a subpoena under Federal Rule of Civil Procedure 45 seeking Doe’s name and mailing address only. Strike 3 may not seek Doe’s email address by subpoena or otherwise, and it may not subpoena another internet provider without another court order.

Strike 3 may use Doe’s name and mailing address only for this litigation. It may not disclose or threaten to disclose that information or other identifying information learned through discovery, and it must file documents containing identifying information under seal. Once identified, Doe may litigate anonymously unless the court later orders otherwise after Doe receives notice and an opportunity to challenge disclosure.

Optimum Online must receive a copy of the order with the subpoena and must notify Doe of both documents within the specified time. Optimum Online and Doe each have 30 days after service to challenge the subpoena, including by asking the court to cancel or change it. Optimum Online may not provide identifying information before that period ends, or while a timely challenge remains unresolved, and must preserve the information. The court also directed Optimum Online to confer with Strike 3 about production costs and not charge any fee in advance.

The court ordered the clerk to terminate the motion docket entry and entered the order on March 21, 2024. The opinion is signed by Robyn F. Tarnofsky, United States Magistrate Judge.