Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC asked for permission to serve a third-party subpoena on Optimum Online, the internet service provider associated with the Internet Protocol address 74.89.105.193. Strike 3 sought the identity of the John Doe defendant so it could serve the lawsuit. The notice to the defendant states that Strike 3 alleges the defendant illegally downloaded or distributed copyrighted films.

Court’s analysis

The court found good cause to allow the subpoena before the parties’ required conference under Federal Rule of Civil Procedure 26(f). It found that Strike 3 had established an initial claim for copyright infringement, needed John Doe’s identity to serve the defendant, and had no alternative way to learn the identity. The court also found good cause for a protective order because of the risk that identifying the wrong subscriber could cause annoyance, embarrassment, oppression, or undue burden or expense.

Order

Judge Rearden granted Strike 3’s motion for leave to serve the subpoena and directed the Clerk of Court to terminate docket entry 6. The subpoena may seek John Doe’s true name and current and permanent address, but may not seek email addresses or telephone numbers.

Optimum Online must serve John Doe with the subpoena, the order, and the notice to defendant within 60 days after the subpoena is served. Under the order, John Doe has 30 days after service of the subpoena and order to file a motion challenging the subpoena, including a motion to quash or modify it, or to request permission to litigate anonymously. Optimum Online may not disclose identifying information before that period ends. If John Doe or Optimum Online files a motion to quash, the provider may not disclose information until the court resolves the issue and directs it to resume production. If no timely challenge is filed, Optimum Online has 10 days to produce the responsive information.

The provider must preserve subpoenaed information while a timely motion to quash is pending. It must confer with Strike 3 before charging production costs and may not charge those costs in advance. Any information disclosed may be used only to protect Strike 3’s rights described in its complaint. The attached notice separately states that the defendant has 60 days after receiving notice from the provider to challenge the subpoena or request anonymous treatment, creating a deadline difference that the opinion does not explain.