Strike 3 Holdings, LLC

Background

Strike 3 Holdings, LLC brought this copyright case against an anonymous defendant identified in the caption as John Doe, subscriber assigned Internet Protocol address 66.108.189.206. Strike 3 alleged that Doe used the BitTorrent protocol to download and distribute 31 digital media files in which Strike 3 claimed copyright ownership. Strike 3 used Internet-address geolocation technology that traced the address to a physical address in the Southern District of New York, accurate to the ZIP or postal-code level.

Strike 3 asked for permission to serve Spectrum, Doe’s Internet service provider, with a subpoena under Federal Rule of Civil Procedure 45. The requested subpoena sought Doe’s name and address so Strike 3 could identify and serve the defendant. The court considered the allegations true only for purposes of deciding this discovery motion; it did not decide whether Doe actually infringed Strike 3’s copyrights.

Court’s Analysis

Because discovery generally cannot begin before the parties’ initial planning conference, the court applied a flexible good-cause standard for early discovery. It considered five factors: whether Strike 3 showed a possible actionable claim, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and Doe’s privacy expectations.

The court concluded that these factors favored Strike 3. Accepting the complaint’s allegations for this motion, the court found that Strike 3 had shown a possible copyright-infringement claim by alleging ownership of valid copyrights and unauthorized distribution. The court found the request for Doe’s name and address sufficiently specific, no readily apparent alternative source for the information, and the information necessary for Strike 3 to serve Doe and continue the case. The court also stated that subscribers have a limited privacy expectation in sharing copyrighted material, while recognizing the risk of embarrassment and mistaken identification.

Order

The court granted Strike 3 permission to serve Spectrum with a Rule 45 subpoena for Doe’s name and address. Strike 3 may not subpoena Doe’s email address or telephone number. The subpoena must include a copy of the order and a notice to Doe.

Doe may remain anonymous unless and until the court orders otherwise. Spectrum must provide Doe with the notice, subpoena, and order within 45 days after receiving the subpoena. Doe then has 60 days after receiving those materials to file a motion challenging the subpoena, including a motion to cancel or change it. Spectrum may not disclose Doe’s identifying information to Strike 3 before that 60-day period expires, or while a timely challenge is pending and unresolved. Spectrum must preserve the subpoenaed information during that process.

Any information ultimately disclosed may be used only to protect Strike 3’s rights described in the complaint. Strike 3’s deadline to serve Doe with the summons and complaint is extended to 45 days after Strike 3 receives the information. Strike 3 may not begin settlement discussions before serving the complaint without the court’s permission, unless Doe initiates those discussions. Strike 3 must also file status letters every 60 days until Doe answers or otherwise responds; failing to do so could result in dismissal for failure to pursue the case. Judge Dale E. Ho directed the clerk to close the motion.