Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC filed a copyright-infringement lawsuit against John Doe. Strike 3 alleges that the person using Internet Protocol address 98.7.21.119 unlawfully downloaded and distributed its motion pictures using BitTorrent. Strike 3 stated that it could identify the defendant only through that internet address.

Strike 3 asked for permission under Federal Rule of Civil Procedure 26(d)(1) to conduct limited discovery before the parties’ required discovery conference. Specifically, it sought permission to serve a Rule 45 subpoena—a formal demand for information—on Spectrum, the internet service provider associated with the address. Strike 3 represented that it would seek only the defendant’s name and address so it could serve the complaint.

Court’s analysis

The court applied the Second Circuit’s multi-factor test for identifying an unknown defendant through early third-party discovery. After reviewing the complaint, Strike 3’s memorandum, and three supporting declarations, the court found that Strike 3 had made substantially the same factual showing that had supported similar requests. The court concluded that the factors favored granting the motion and that there was good cause for the limited early discovery.

The court also found that safeguards were needed because of the possibility of embarrassment and mistaken identification associated with an internet address and the alleged downloading of pornographic movies. Applying the factors used to decide whether a litigant may proceed anonymously, the court concluded that protecting the defendant’s anonymity was appropriate at this stage.

Order

The court granted Strike 3’s motion with limitations:

- Within 14 days, Strike 3 may serve Spectrum with a subpoena seeking only John Doe’s name and address. It may not seek the defendant’s telephone number, email address, or other information. - Within 60 days after receiving the subpoena, Spectrum must deliver the subpoena, complaint, order, and subscriber notice to the subscriber or subscribers it determines are associated with the internet address. Spectrum must tell Strike 3 when and how it delivered those materials. - The identifying information may not be provided to Strike 3 until the subscriber’s 60-day period to challenge the subpoena has expired. If the subscriber or Spectrum files a motion to quash or modify the subpoena, the information may not be released until the court resolves that motion and orders disclosure. - Spectrum must preserve the subpoenaed information while a timely challenge is pending. - If the 60-day challenge period expires without a motion, Strike 3 may notify the court and request an order requiring Spectrum to release the information. The court stated that it expects to issue such an order directing release within 21 days thereafter, but Spectrum may file its own motion during the applicable period. - Information disclosed in response to the subpoena may be used only to protect Strike 3’s rights described in the complaint. Strike 3 may not begin settlement discussions before serving the complaint unless the court permits it, although it may participate if the defendant initiates discussions. - John Doe may proceed anonymously unless the court orders otherwise. Strike 3 must file documents containing identifying information in redacted form, file unredacted versions under seal, and not disclose the information to anyone else.

The court also directed Strike 3 to file a status letter by June 30, 2024, and directed the Clerk of Court to close the motion listed at Docket Number 12. Judge Gary Stein signed the order as United States Magistrate Judge.