Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 108.21.214.248 — Court Grants Expedited Discovery to Identify Copyright Infringer via ISP Subpoena

Background

Strike 3 Holdings, LLC commenced this copyright infringement action against an unnamed defendant identified only by Internet Protocol address 108.21.214.248. According to the complaint, the defendant illegally accessed and distributed explicit pornographic films via BitTorrent. Plaintiff used IP address intelligence and online fraud detection tools to trace the address to a physical location within the Eastern District of New York, but could only learn the subscriber's true identity through the non-party Internet Service Provider, Verizon Fios.

Before the court was Plaintiff's ex parte motion pursuant to Federal Rule of Civil Procedure 26(d)(1) seeking permission to serve a subpoena upon the ISP prior to service of process and a Rule 26(f) conference. The motion sought to obtain the Doe defendant's name and address to enable service of process and prosecution of the copyright claim.

The Court’s Holding

Magistrate Judge Vera M. Scanlon concluded that good cause existed to allow expedited discovery and granted Plaintiff's motion for leave to serve a Rule 45 subpoena on Verizon Fios, subject to extensive protective conditions. The court incorporated its reasoning from Strike 3 Holdings, LLC v. Doe, No. 20 Civ. 4501 (WFK) (VMS), 2021 WL 535218 (E.D.N.Y. Feb. 12, 2021), finding the factual circumstances and legal issues nearly identical. The court noted that courts in this District (the Eastern District of New York) have approved similar motions, citing multiple prior Strike 3 Holdings decisions, and separately cited the D.C. Circuit's reversal of a denial of such discovery where the plaintiff utilized technology to target individual serial infringers.

The court acknowledged the substantial likelihood that a subscriber identified as associated with an allegedly infringing IP address may not be the actual infringer, who could be a family member, employee, invitee, neighbor, or interloper. Given this risk and the sensitive nature of the allegations involving explicit pornographic films, the court imposed special precautions to protect the reputation of a possibly innocent subscriber and to minimize Plaintiff's incentive to engage in abusive litigation practices. The court warned that failure to comply with these conditions may result in sanctions.

Key Takeaways

• The court granted expedited discovery under Rule 26(d)(1) to allow Strike 3 Holdings to serve a Rule 45 subpoena on Verizon Fios to identify the subscriber associated with IP address 108.21.214.248 before the Rule 26(f) conference.
• The subpoena is strictly limited to seeking the name and address of the internet subscriber; Plaintiff may not seek telephone numbers, email addresses, or information about other potential defendants without further court order.
• The ISP must not immediately disclose the subscriber's identity to Plaintiff but must instead serve the subscriber with the subpoena, complaint, notice, and order within sixty days, allowing the subscriber sixty days to move to quash or modify the subpoena or to proceed anonymously.
• If the subscriber does not contest the subpoena within sixty days, the ISP must produce the information to Plaintiff's counsel for 'Attorneys' Eyes Only' review, and the information may not be disclosed to Plaintiff itself or used for any purpose other than this litigation.
• The court extended Plaintiff's time to serve process under Rule 4(m) to thirty days after the expiration of the period to move to quash or thirty days following denial of any such motion, provided Plaintiff serves the subpoena within thirty days of the order.

Why It Matters

This order illustrates the standardized procedural framework that federal courts in the Eastern District of New York have developed for balancing a copyright holder's need to identify alleged online infringers against the privacy rights and reputational interests of internet subscribers who may be incorrectly identified. By requiring judicial pre-approval of ISP subpoenas in BitTorrent copyright cases and imposing strict 'Attorneys' Eyes Only' protections, the court seeks to prevent abusive litigation tactics while permitting legitimate copyright enforcement.

The decision reinforces that good cause for expedited discovery exists where a plaintiff makes a prima facie showing of actual harm, demonstrates that the request is sufficiently specific, has no alternative means to obtain the information, and shows the information is necessary to advance the claim. The detailed protective conditions—including the 60-day waiting period, prohibition on settlement contact before service, and restrictions on use of disclosed information—serve as a template for Doe defendant copyright litigation involving sensitive subject matter.