Strike 3 Holdings,LLC v. Doe

Background

Strike 3 Holdings, LLC filed a copyright-infringement complaint against an unidentified defendant identified as John Doe, the subscriber assigned Internet Protocol address 70.18.210.129. Strike 3 alleged that Doe downloaded 25 of its motion pictures and distributed them to others. The opinion states that the movies contain pornographic material.

Strike 3 moved for permission to take expedited discovery—early information gathering before the normal discovery process—from Astound Broadband, the Internet service provider associated with the Internet address. Strike 3 sought Doe’s name and physical address so that it could identify and serve the defendant. The court found good cause for some expedited discovery because Strike 3 otherwise could not ascertain Doe’s identity for service. The court also recognized that the subscriber assigned an Internet address may not be the person who infringed a copyright and that an incorrect identification could create pressure to settle because of the risk of public association with pornographic films.

Order

The court ordered that Strike 3 may immediately serve Astound Broadband with a subpoena under Federal Rule of Civil Procedure 45 seeking John Doe’s name and current and permanent address. A copy of the order must accompany the subpoena.

Strike 3 must immediately serve the order on Astound Broadband, and Astound must serve it on John Doe by a reasonable method, including first-class mail or overnight service to Doe’s last known address. Doe then has 60 days from service of the order to file a motion challenging the subpoena, including a motion to quash or modify it, or to request permission to litigate anonymously. Astound may not disclose Doe’s identifying information before that period expires. If Doe or Astound files a motion to quash, Astound may not disclose information until the court resolves the issue and directs Astound to resume production.

If no challenge is filed during the 60-day period, Astound has 10 days to produce information responsive to the subpoena. Astound must preserve the subpoenaed information while any timely motion to quash is pending. It must confer with Strike 3 and may not charge in advance for producing the information, although it may later provide Strike 3 with a billing summary and cost report. Any information disclosed may be used only to protect Strike 3’s rights described in the complaint.

Disposition and Effect

The court authorized limited expedited discovery subject to notice, a 60-day challenge period, possible anonymous litigation, preservation requirements, and a use restriction. The Clerk was directed to close the motion at Docket 6. This order addressed discovery and identification of the defendant; it did not decide whether John Doe committed copyright infringement.