Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.164.95.245
U.S. District Court, District of Minnesota
Strike 3 Holdings, LLC v. Doe subscriber assigned IP address 73.164.95.245
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Strike 3 Holdings, LLC, Case No. 23-cv-3854 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.164.95.245,
Defendant.
Case No. 23-cv-3855 (PJS/DJF)
Strike 3 Holdings, LLC,
Plaintiff,
v.
John Doe subscriber assigned IP address
71.10.65.161,
Defendant.
Strike 3 Holdings, LLC, Case No. 23-cv-3856 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
67.220.4.133,
Defendant.
Strike 3 Holdings, LLC, Case No. 23-cv-3857 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.242.4.56,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-201 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
71.13.47.50,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-202 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
47.12.23.204,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-204 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.62.152.105,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-205 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
98.61.172.59,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-206 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
66.41.98.159,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-207 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.65.57.19,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-208 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
24.179.181.116,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-1060 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.242.59.238,
Defendant.
OMNIBUS ORDER
This matter is before the Court on Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte
Motion s for Leave to Serve Third-Party Subpoenas Prior to a Rule 26(f) Conference, which
Strike 3 filed in twelve separate cases in the District of Minnesota. Strike 3 alleges similar claims
of copyright infringement in each case, and the motions Strike 3 filed in these cases are
substantively the same. Therefore, the Court addresses each of the twelve motions in a single
Omnibus Order.1
1 The Court filed four similar Omnibus Orders on March 31, 2023, May 10, 2023,
June 20, 2023, July 31, 2023, and December 6, 2023 addressing substantively similar ex parte
motions for expedited discovery that Strike 3 filed in eighty-one nearly identical cases in 2023.
See Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-573 (PJS/DJF), 23-574 (PJS/DJF), 23-575
(PJS/DJF), 23-576 (PJS/DJF), 23-578 (PJS/DJF), 23-584 (PJS/DJF), 23-585 (PJS/DJF), 23-586
(PJS/DJF), 23-587 (PJS/DJF), 23-588 (PJS/DJF), 23-590 (PJS/DJF), 23- 591 (PJS/DJF), 23-592
(PJS/DJF), 23-593 (PJS/DJF), 23-594 (PJS/DJF), 2023 WL 2728821(D. Minn. March 31, 2023); Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-1014 (PJS/DJF), 23-1017 (PJS/DJF), 23-1019 (PJS/DJF), 23-1021 (PJS/DJF), 23-1024 (PJS/DJF), 23-1026 (PJS/DJF), 23-1027 (PJS/DJF), 23- 1164 (PJS/DJF), 23-1165 (PJS/DJF), 23-1167 (PJS/DJF), 23-1168 (PJS/DJF), 23-1169 (PJS/DJF), 23-1171 (PJS/DJF), 23-1172 (PJS/DJF),2023 WL 3336809
(D. Minn. May 10, 2023); and Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-1434 (PJS/DJF), 23-1436 (PJS/DJF), 23-1439 (PJS/DJF), 23-1440 (PJS/DJF), 23-1441 (PJS/DJF), 23-1442 (PJS/DJF), 23-1443 (PJS/DJF), 23-1444 (PJS/DJF), 23-1562 (PJS/DJF), 23-1564 (PJS/DJF), 23-1565 (PJS/DJF), 23-1566 (PJS/DJF), 23- 1567 (PJS/DJF), 23-1568 (PJS/DJF), 23-1569 (PJS/DJF), 23-1570 (PJS/DJF), 23-1571 (PJS/DJF),2023 WL 4074544
(D. Minn. June 20, 2023); Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-1891 (PJS/DJF), 23-1892 (PJS/DJF), 23-1893 (PJS/DJF), 23-1894 (PJS/DJF), 23-1895 (PJS/DJF), 23- 1896 (PJS/DJF), 23-1897 (PJS/DJF), 23-1898 (PJS/DJF), 23-1899 (PJS/DJF), 23-1900 (PJS/DJF), 23-1901 (PJS/DJF), 23-1902 (PJS/DJF),2023 WL 4864279
(D. Minn. July 31, 2023); Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-2203 (PJS/DJF), 23-2204 (PJS/DJF), 23-2657 (PJS/DJF), 23-2658 (PJS/DJF), 23-2659 (PJS/DJF), 23-2660 (PJS/DJF), 23-2661 (PJS/DJF), 23-2949 (PJS/DJF), 23-2951 (PJS/DJF), 23-2953 (PJS/DJF), 23-2955 (PJS/DJF), 23-2956 (PJS/DJF), 23-3265 (PJS/DJF), 23-3266 (PJS/DJF), 23-3267 (PJS/DJF), 23-3268 (PJS/DJF), 23-3270 (PJS/DJF), 23-3271 (PJS/DJF), 23-3273 (PJS/DJF), 23-23274 (PJS/DJF), 23-3276 (PJS/DJF),2023 WL 8449227
(D. Minn. Dec. 6, 2023). This Omnibus Order mirrors the Court’s previous
Omnibus Orders.
BACKGROUND
From December 2023 to March 2024, Strike 3 filed twelve cases against John Doe
defendants in the District of Minnesota: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF);
Strike 3 Holdings, LLC v. Doe, No. 23-cv-3855 (PJS/DJF); Strike 3 Holdings, LLC v. Doe,
No. 23-cv-3856 (PJS/DJF); Strike 3 Holdings, LLC v. Doe, No. 23-cv-3857 (PJS/DJF); Strike 3
Holdings, LLC v. Doe, No. 24-cv-201 (PJS/DJF); Strike 3 Holdings, LLC v. Doe, No. 24-cv-202
(PJS/DJF); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-204 (PJS/DJF); Strike 3 Holdings, LLC
v. Doe, No. 24-cv-205 (PJS/DJF); Strike 3 Holdings, LLC v. Doe, No. 24-cv-206 (PJS/DJF);
Strike 3 Holdings, LLC v. Doe, No. 24-cv-207 (PJS/DJF); Strike 3 Holdings, LLC v. Doe,
No. 24-cv-208 (PJS/DJF); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-1060 (PJS/DJF).2
In each case, Strike 3 alleges a John Doe Defendant (“Defendant”) committed copyright
infringement by unlawfully downloading and distributing Strike 3’s copyrighted movies.3 (ECF
No. 1 ¶ 4.) Strike 3 distributes its copyrighted movies through adult websites and DVDs. (Id. ¶ 3.)
2 In addition to the eighty-one cases Strike 3 filed in this District in 2023, Strike 3 similarly
filed eight nearly identical cases against John Doe Defendants in March 2018: Strike 3 Holdings,
LLC v. Doe, Civ. No. 18-768 (DSD/FLN), 2018 WL 1924455(D. Minn. Apr. 24, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-771 (DWF/HB),2018 WL 2278110
(D. Minn. May 18, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-773 (JRT/DTS), slip op. (D. Minn. Apr. 30, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS),2018 WL 4210202
(D. Minn. Sept. 4, 2018); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00775 (PJS/SER) slip. op. (D. Minn. May 25, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-777 (JRT/BRT),2018 WL 2078707
, at *4 (D. Minn. May 4, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-778 (PJS/HB),2018 WL 2278111
, at *5-6 (D. Minn. May 18, 2018); and Strike 3 Holdings, LLC v. Doe, Civ. No. 18-779
(WMW/SER), slip op. at 8-10 (D. Minn. May 25, 2018).
3 The Court has reviewed all of the Complaints Strike 3 filed in December 2023 to
March 2024 and notes they are nearly identical, save for the IP addresses linked to each Defendant,
Defendant’s Internet Service Provider, and the number of works each Defendant allegedly
infringed. Moreover, the Motion and supporting documents Strike 3 filed in each case are also
substantively similar. Therefore, for ease of reference, the Court cites only to the docket entries
filed in Strike 3 Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF).
Strike 3 alleges each Defendant used a BitTorrent file distribution protocol to download the movies
and illegally distribute them over the internet. (Id. ¶ 4.) Strike 3 states that it operates a proprietary
infringement detection system (“VXN”), which monitored and detected that each Defendant’s IP
address was illegally distributing one or more of Strike 3’s copyrighted works. (Id. ¶¶ 27-39.)
Strike 3 has not been able to identify any Defendant other than by his or her IP address, but it
alleges each Defendant’s Internet Service Provider (“ISP”) is able to identify the alleged infringer
by name and address using the IP address. (Id. ¶¶ 5, 12.)
In each of the twelve cases, Strike 3 filed a substantively similar Ex Parte Motion for Leave
to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (“Motion”).4 See, e.g., Strike 3
Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF) (ECF No. 5). Strike 3 contends that because
VXN can identify each Defendant only by an IP address assigned by his or her ISP, the ISP is the
only party with the information necessary to identify the Defendant, by correlating the IP address
with the Defendant’s identity. (ECF No. 6 at 1-2.) Strike 3 seeks leave to serve limited, immediate
discovery on each Defendant’s ISP so that Strike 3 may learn the Defendant’s identity, investigate
the Defendant’s role in the alleged infringement, and effectuate service on the Defendant. (Id at 2.)
4 Strike 3 filed the Motion in four cases case on January 17, 2024: Strike 3 Holdings, LLC
v. Doe, No. 23-cv-3854 (PJS/DJF) (ECF No. 5), Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3855
(PJS/DJF) (ECF No. 5), Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3856 (PJS/DJF) (ECF No. 5),
and Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3857 (PJS/DJF) (ECF No. 5). Strike 3 filed the
Motion in seven cases on February 7, 2024: Strike 3 Holdings, LLC v. Doe, No. 24-cv-201
(PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-202 (ECF No. 5); Strike 3
Holdings, LLC v. Doe, No. 24-cv-204 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe,
No. 24-cv-205 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-206 (PJS/DJF)
(ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-207 (PJS/DJF) (ECF No. 5) and Strike 3
Holdings, LLC v. Doe, No. 24-cv-208(PJS/DJF) (ECF No. 5). Strike 3 filed the Motion in one
additional case on April 4, 2024: Strike 3 Holdings, LLC v. Doe, No. 24- cv- 1060 (PJS/DJF)
(ECF No. 5.)
To accomplish this, Strike 3 seeks leave to serve a Rule 45 subpoena on each Defendant’s ISP
before a Rule 26(f) conference is held in this matter.5 (Id.)
DISCUSSION
I. Legal Standard
Litigants generally “may not seek discovery from any source before the parties have
conferred as required by Rule 26(f), except … when authorized by these rules, by stipulation, or
by court order.” Fed. R. Civ. P. 26(d)(1). Expedited discovery may be warranted, though, in cases
in which the defendant’s identity is unknown. See, e.g., Minnetonka Moccasin Co., Inc. v. Does,
Civ. No. 22-87 (PJS/TNL), 2022 WL 1055746, at *2 (D. Minn. Apr. 8, 2022) (citing Strike 3 Holdings, LLC v. Doe, No. 18-cv-778 (PJS/HB),2018 WL 2278111
, at *3 (D. Minn. May 18, 2018)). Although the Eighth Circuit has not articulated a standard governing when expedited discovery is appropriate, courts in this district typically apply a “good cause standard.” Council on Am.-Islamic Rels.—Minnesota v. Atlas Aegis, LLC,497 F. Supp. 3d 371
, 380 (D. 5 Strike 3 identifies Comcast Cable as the ISP in the following cases: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3857 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-204 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-205 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-206 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-207 (PJS/DJF) (ECF No. 5); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-1060 (PJS/DJF) (ECF No. 5). Strike 3 identifies Spectrum as the ISP in the following cases: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3855 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-201 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-202 (PJS/DJF) (ECF No. 5); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-208 (PJS/DJF) (ECF No. 5). Strike 3 identifies US Internet Corp as the ISP in the following case: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3856 (PJS/DJF) (ECF No. 5). Minn. 2020). “Under the good cause standard, the party seeking expedited discovery must show that the need for expediting, in consideration of administration of justice, outweighs prejudice to the responding party.” Id. at 380 (internal quotation marks and citation omitted). In similar cases Strike 3 filed in 2018 and 2023, courts in this district applied the factors set forth in Arista Records, LLC v. Doe,604 F.3d 110, 119
(2d Cir. 2010): (1) the concreteness of the plaintiff’s showing of a prima facie claim of actionable harm, (2) the specificity of the discovery request, (3) the absence of alternative means to obtain the subpoenaed information, (4) the need for the subpoenaed information to advance the claim, and (5) the objecting party’s expectation of privacy. Based on these factors, the courts in the majority of these cases found expedited discovery was appropriate. See, e.g., Strike 3 Holdings, LLC v. Doe,2023 WL 8449227
(D. Minn. Dec. 6, 2023) (finding good cause under the Arista Records factors to allow expedited discovery); Strike 3 Holdings, LLC v. Doe,2023 WL 4864279
(D. Minn. July 31, 2023) (same); Strike 3 Holdings, LLC v. Doe,2023 WL 4074544
(D. Minn. June 20, 2023) (same); Strike 3 Holdings, LLC v. Doe,2023 WL 3336809
(D. Minn. May 10, 2023) (same); Strike 3 Holdings, LLC v. Doe,2023 WL 2728821
, at *3 (D. Minn. March 31, 2023) (same); Strike 3 Holdings, LLC v. Doe,330 F.R.D. 552
, 556 (D. Minn. 2019) (vacating order that denied Strike 3’s motion for leave to serve a third-party subpoena based on the Arista Records factors); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS),2018 WL 4210202
, at *2-3 (D. Minn. Sept. 4, 2018) (same); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-777 (JRT/BRT),2018 WL 2078707
, at *1-3 (D. Minn. May 4, 2018) (finding good cause under the Arista Records factors to allow expedited discovery); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-771 (DWF/HB),2018 WL 2278110
, at *5 (D. Minn. May 18, 2018) (same); Strike 3 Holdings, LLC v. Doe, Civ. No. 18- 778 (PJS/HB),2018 WL 2278111
, at *5-6 (D. Minn. May 18, 2018) (same); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-779 (WMW/SER), slip op. at 8-10 (D. Minn. May 25, 2018) (same). But see Strike 3 Holdings, LLC v. Doe,329 F.R.D. 606
, 610 (D. Minn. 2018) (denying motion to serve third-party subpoena based on privacy concerns), vacated, Strike 3 Holdings, LLC v. Doe,330 F.R.D. 552
, 556 (D. Minn. 2019); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS), slip op. (D. Minn. April 30, 2018) (same), vacated, Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS),2018 WL 4210202
, at *2-3 (D. Minn. Sept. 4, 2018); Strike 3 Holdings, LLC, v. Doe, Civ. No.18-768 (DSD/FLN),2018 WL 1924455
(D. Minn. Apr. 24, 2018). Applying the Arista Records factors to the twelve cases now before the Court, the Court concludes expedited discovery is warranted because: (1) Strike 3 has stated an actionable claim for copyright infringement;6 (2) the discovery request is specific in that it seeks only each Defendant’s name and address; (3) there are no alternative ways to obtain the information;7 (4) the case cannot proceed without each Defendant’s identity; and (5) with appropriate privacy guardrails in place as set forth below, Strike 3’s right to use the judicial process to pursue its copyright claims 6 “The elements of copyright infringement are: (1) ownership of a valid copyright; and (2) copying of original elements of the copyrighted work.” Warner Bros. Entm’t v. X One X Prods.,644 F.3d 584, 595
(8th Cir. 2011). Strike 3 sufficiently alleges that it is the owner of copyrighted works, that each Defendant copied and distributed the works owned by Strike 3, and that Strike 3 did not authorize the Defendant’s distribution of the copyrighted works. (ECF No. 1 ¶¶ 2, 4, 43, 45.) 7 While the Digital Millennium Copyright Act (“DMCA”) establishes a procedure enabling a copyright holder to obtain and serve subpoenas on ISPs for identification of an alleged infringer under certain conditions, the Eighth Circuit held that the process does not apply when, as in these cases, an ISP merely acts as a conduit for data transferred between two internet users. In re Charter Communications,393 F.3d 771, 775-77
(8th Cir. 2005). When an ISP acts only as a conduit, the Eighth Circuit endorsed the procedure Strike 3 employed here, namely, to identify alleged infringers by filing a “John Doe” lawsuit, along with a motion for third-party discovery of the identity of the otherwise anonymous “John Doe” defendant.Id.
at 775 n.3. outweighs each Defendant’s expectation of privacy. The Court is cognizant of the risk that a Defendant subscriber may not be the actual infringer, and yet could be implicated in a case involving sensitive and potentially embarrassing subject matter. See Strike 3 Holdings, LLC v. Doe,2023 WL 8449227
(D. Minn. Dec. 6, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 4864279
(D. Minn. July 31, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 4074544
(D. Minn. June 20, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 3336809
(D. Minn. May 10, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 2728821
, at *3 (D. Minn. March 31, 2023); Strike 3 Holdings, LLC v. Doe,2018 WL 4210202
, at *2 (D. Minn. Sept. 4, 2018); see also Media Prods., Inc. v. Does 1–26, No. 12-cv-3719,2012 WL 2190613
, at *1 (S.D.N.Y. June 12, 2012) (“The fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer.”) In light of these valid privacy concerns, the Court will issue a limited protective order to protect the rights of each unnamed Defendant subscriber, as set forth below.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe subscriber
assigned IP address 73.164.95.245, No. 23-cv-3854 (PJS/DJF) (ECF No. [5]), is GRANTED as
set forth in paragraphs 13-18 below.
2. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 71.10.65.161, No. 23-cv-3855 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
3. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 67.220.4.133, No. 23-cv-3856 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
4. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.242.4.56, No. 23-cv-3857 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
5. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 71.13.47.50, No. 24-cv-201 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
6. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 47.12.23.204, No. No. 24-cv-202 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
7. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.62.152.105, No. No. 24-cv-204 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
8. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe subscriber
assigned IP address 98.61.172.59, No. No. 24-cv-205 (PJS/DJF) (ECF No. [5]), is GRANTED
as set forth in paragraphs 13-18 below.
9. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 66.41.98.159, No. No. 24-cv-206 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
10. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.65.57.19, No. No. 24-cv-207 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
11. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 24.179.181.116, No. 23-cv- No. 24-cv-208 (PJS/DJF) (ECF
No. [5]), is GRANTED as set forth in paragraphs 13-18 below.
12. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.242.59.238, No. 24-cv-1060 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
13. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on the
Defendant’s Internet Service Provider, seeking only the name and address of the subscriber
assigned to the IP address identified in the Complaint for the time periods of the alleged infringing
activity outlined in Exhibit A to Plaintiff’s Complaint (ECF No. 1-1).
14. The subpoena must provide a minimum of sixty (60) days’ notice before any
production is required and shall be limited to one category of documents identifying the particular
subscriber identified in the Complaint. The requested information shall be limited to the name and
address of the subscriber during the time period of the alleged infringing activity referenced in
Exhibit A to the Complaint (ECF No. 1-1). The Internet Service Provider may seek a protective
order if it determines there is a legitimate basis for doing so.
15. The Internet Service Provider shall have fourteen (14) calendar days after service of
the subpoena to notify the subscriber that Plaintiff has subpoenaed the subscriber’s identity. The
subscriber whose identity has been subpoenaed shall then have forty-five (45) calendar days from
the date of the notice to seek a protective order, file any responsive pleading, or both.
16. Plaintiff shall serve a copy of this Order with any subpoena obtained and served
pursuant to this Order on the Internet Service Provider. The Internet Service Provider, in turn,
must provide a copy of this Order along with the required notice to the subscriber whose identity
is sought pursuant to this Order. When providing its response or objection to the subpoena, the
Internet Service Provider must certify that it has provided a copy of this Order and the required
notice to the subscriber and state the date such notice was provided. No other discovery is
authorized at this time.
17. Plaintiff must not publicly disclose the information disclosed in response to the
subpoena until the Defendant has had an opportunity to file a motion with the Court allowing the
Defendant to proceed in this litigation anonymously, and the Court rules on any such motion. If
the Defendant does not file a motion for leave to proceed anonymously within forty-five (45)
calendar days after his or her information is disclosed to Plaintiff’s counsel, this limited protective
order will expire. If the Defendant includes identifying information in his or her request to proceed
anonymously, the Court finds good cause to order the request temporarily filed under seal until the
Court rules on the request and considers whether such materials should remain under seal.
18. On or before June 11, 2024, Plaintiff shall file a status report in each of the twelve
cases addressed in this Order. The status report shall outline the progress of the discovery
authorized by this Order and must not include any information regarding the Defendant’s identity.
Dated: April 11, 2024 s/ Dulce J. Foster
DULCE J. FOSTER
United States Magistrate Judge Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Strike 3 Holdings, LLC, Case No. 23-cv-3854 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.164.95.245,
Defendant.
Case No. 23-cv-3855 (PJS/DJF)
Strike 3 Holdings, LLC,
Plaintiff,
v.
John Doe subscriber assigned IP address
71.10.65.161,
Defendant.
Strike 3 Holdings, LLC, Case No. 23-cv-3856 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
67.220.4.133,
Defendant.
Strike 3 Holdings, LLC, Case No. 23-cv-3857 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.242.4.56,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-201 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
71.13.47.50,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-202 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
47.12.23.204,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-204 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.62.152.105,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-205 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
98.61.172.59,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-206 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
66.41.98.159,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-207 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.65.57.19,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-208 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
24.179.181.116,
Defendant.
Strike 3 Holdings, LLC, Case No. 24-cv-1060 (PJS/DJF)
Plaintiff,
v.
John Doe subscriber assigned IP address
73.242.59.238,
Defendant.
OMNIBUS ORDER
This matter is before the Court on Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte
Motion s for Leave to Serve Third-Party Subpoenas Prior to a Rule 26(f) Conference, which
Strike 3 filed in twelve separate cases in the District of Minnesota. Strike 3 alleges similar claims
of copyright infringement in each case, and the motions Strike 3 filed in these cases are
substantively the same. Therefore, the Court addresses each of the twelve motions in a single
Omnibus Order.1
1 The Court filed four similar Omnibus Orders on March 31, 2023, May 10, 2023,
June 20, 2023, July 31, 2023, and December 6, 2023 addressing substantively similar ex parte
motions for expedited discovery that Strike 3 filed in eighty-one nearly identical cases in 2023.
See Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-573 (PJS/DJF), 23-574 (PJS/DJF), 23-575
(PJS/DJF), 23-576 (PJS/DJF), 23-578 (PJS/DJF), 23-584 (PJS/DJF), 23-585 (PJS/DJF), 23-586
(PJS/DJF), 23-587 (PJS/DJF), 23-588 (PJS/DJF), 23-590 (PJS/DJF), 23- 591 (PJS/DJF), 23-592
(PJS/DJF), 23-593 (PJS/DJF), 23-594 (PJS/DJF), 2023 WL 2728821(D. Minn. March 31, 2023); Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-1014 (PJS/DJF), 23-1017 (PJS/DJF), 23-1019 (PJS/DJF), 23-1021 (PJS/DJF), 23-1024 (PJS/DJF), 23-1026 (PJS/DJF), 23-1027 (PJS/DJF), 23- 1164 (PJS/DJF), 23-1165 (PJS/DJF), 23-1167 (PJS/DJF), 23-1168 (PJS/DJF), 23-1169 (PJS/DJF), 23-1171 (PJS/DJF), 23-1172 (PJS/DJF),2023 WL 3336809
(D. Minn. May 10, 2023); and Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-1434 (PJS/DJF), 23-1436 (PJS/DJF), 23-1439 (PJS/DJF), 23-1440 (PJS/DJF), 23-1441 (PJS/DJF), 23-1442 (PJS/DJF), 23-1443 (PJS/DJF), 23-1444 (PJS/DJF), 23-1562 (PJS/DJF), 23-1564 (PJS/DJF), 23-1565 (PJS/DJF), 23-1566 (PJS/DJF), 23- 1567 (PJS/DJF), 23-1568 (PJS/DJF), 23-1569 (PJS/DJF), 23-1570 (PJS/DJF), 23-1571 (PJS/DJF),2023 WL 4074544
(D. Minn. June 20, 2023); Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-1891 (PJS/DJF), 23-1892 (PJS/DJF), 23-1893 (PJS/DJF), 23-1894 (PJS/DJF), 23-1895 (PJS/DJF), 23- 1896 (PJS/DJF), 23-1897 (PJS/DJF), 23-1898 (PJS/DJF), 23-1899 (PJS/DJF), 23-1900 (PJS/DJF), 23-1901 (PJS/DJF), 23-1902 (PJS/DJF),2023 WL 4864279
(D. Minn. July 31, 2023); Strike 3 Holdings, LLC v. Doe, Civ. Nos. 23-2203 (PJS/DJF), 23-2204 (PJS/DJF), 23-2657 (PJS/DJF), 23-2658 (PJS/DJF), 23-2659 (PJS/DJF), 23-2660 (PJS/DJF), 23-2661 (PJS/DJF), 23-2949 (PJS/DJF), 23-2951 (PJS/DJF), 23-2953 (PJS/DJF), 23-2955 (PJS/DJF), 23-2956 (PJS/DJF), 23-3265 (PJS/DJF), 23-3266 (PJS/DJF), 23-3267 (PJS/DJF), 23-3268 (PJS/DJF), 23-3270 (PJS/DJF), 23-3271 (PJS/DJF), 23-3273 (PJS/DJF), 23-23274 (PJS/DJF), 23-3276 (PJS/DJF),2023 WL 8449227
(D. Minn. Dec. 6, 2023). This Omnibus Order mirrors the Court’s previous
Omnibus Orders.
BACKGROUND
From December 2023 to March 2024, Strike 3 filed twelve cases against John Doe
defendants in the District of Minnesota: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF);
Strike 3 Holdings, LLC v. Doe, No. 23-cv-3855 (PJS/DJF); Strike 3 Holdings, LLC v. Doe,
No. 23-cv-3856 (PJS/DJF); Strike 3 Holdings, LLC v. Doe, No. 23-cv-3857 (PJS/DJF); Strike 3
Holdings, LLC v. Doe, No. 24-cv-201 (PJS/DJF); Strike 3 Holdings, LLC v. Doe, No. 24-cv-202
(PJS/DJF); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-204 (PJS/DJF); Strike 3 Holdings, LLC
v. Doe, No. 24-cv-205 (PJS/DJF); Strike 3 Holdings, LLC v. Doe, No. 24-cv-206 (PJS/DJF);
Strike 3 Holdings, LLC v. Doe, No. 24-cv-207 (PJS/DJF); Strike 3 Holdings, LLC v. Doe,
No. 24-cv-208 (PJS/DJF); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-1060 (PJS/DJF).2
In each case, Strike 3 alleges a John Doe Defendant (“Defendant”) committed copyright
infringement by unlawfully downloading and distributing Strike 3’s copyrighted movies.3 (ECF
No. 1 ¶ 4.) Strike 3 distributes its copyrighted movies through adult websites and DVDs. (Id. ¶ 3.)
2 In addition to the eighty-one cases Strike 3 filed in this District in 2023, Strike 3 similarly
filed eight nearly identical cases against John Doe Defendants in March 2018: Strike 3 Holdings,
LLC v. Doe, Civ. No. 18-768 (DSD/FLN), 2018 WL 1924455(D. Minn. Apr. 24, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-771 (DWF/HB),2018 WL 2278110
(D. Minn. May 18, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-773 (JRT/DTS), slip op. (D. Minn. Apr. 30, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS),2018 WL 4210202
(D. Minn. Sept. 4, 2018); Strike 3 Holdings, LLC v. Doe, No. 18-cv-00775 (PJS/SER) slip. op. (D. Minn. May 25, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-777 (JRT/BRT),2018 WL 2078707
, at *4 (D. Minn. May 4, 2018); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-778 (PJS/HB),2018 WL 2278111
, at *5-6 (D. Minn. May 18, 2018); and Strike 3 Holdings, LLC v. Doe, Civ. No. 18-779
(WMW/SER), slip op. at 8-10 (D. Minn. May 25, 2018).
3 The Court has reviewed all of the Complaints Strike 3 filed in December 2023 to
March 2024 and notes they are nearly identical, save for the IP addresses linked to each Defendant,
Defendant’s Internet Service Provider, and the number of works each Defendant allegedly
infringed. Moreover, the Motion and supporting documents Strike 3 filed in each case are also
substantively similar. Therefore, for ease of reference, the Court cites only to the docket entries
filed in Strike 3 Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF).
Strike 3 alleges each Defendant used a BitTorrent file distribution protocol to download the movies
and illegally distribute them over the internet. (Id. ¶ 4.) Strike 3 states that it operates a proprietary
infringement detection system (“VXN”), which monitored and detected that each Defendant’s IP
address was illegally distributing one or more of Strike 3’s copyrighted works. (Id. ¶¶ 27-39.)
Strike 3 has not been able to identify any Defendant other than by his or her IP address, but it
alleges each Defendant’s Internet Service Provider (“ISP”) is able to identify the alleged infringer
by name and address using the IP address. (Id. ¶¶ 5, 12.)
In each of the twelve cases, Strike 3 filed a substantively similar Ex Parte Motion for Leave
to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (“Motion”).4 See, e.g., Strike 3
Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF) (ECF No. 5). Strike 3 contends that because
VXN can identify each Defendant only by an IP address assigned by his or her ISP, the ISP is the
only party with the information necessary to identify the Defendant, by correlating the IP address
with the Defendant’s identity. (ECF No. 6 at 1-2.) Strike 3 seeks leave to serve limited, immediate
discovery on each Defendant’s ISP so that Strike 3 may learn the Defendant’s identity, investigate
the Defendant’s role in the alleged infringement, and effectuate service on the Defendant. (Id at 2.)
4 Strike 3 filed the Motion in four cases case on January 17, 2024: Strike 3 Holdings, LLC
v. Doe, No. 23-cv-3854 (PJS/DJF) (ECF No. 5), Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3855
(PJS/DJF) (ECF No. 5), Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3856 (PJS/DJF) (ECF No. 5),
and Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3857 (PJS/DJF) (ECF No. 5). Strike 3 filed the
Motion in seven cases on February 7, 2024: Strike 3 Holdings, LLC v. Doe, No. 24-cv-201
(PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-202 (ECF No. 5); Strike 3
Holdings, LLC v. Doe, No. 24-cv-204 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe,
No. 24-cv-205 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-206 (PJS/DJF)
(ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-207 (PJS/DJF) (ECF No. 5) and Strike 3
Holdings, LLC v. Doe, No. 24-cv-208(PJS/DJF) (ECF No. 5). Strike 3 filed the Motion in one
additional case on April 4, 2024: Strike 3 Holdings, LLC v. Doe, No. 24- cv- 1060 (PJS/DJF)
(ECF No. 5.)
To accomplish this, Strike 3 seeks leave to serve a Rule 45 subpoena on each Defendant’s ISP
before a Rule 26(f) conference is held in this matter.5 (Id.)
DISCUSSION
I. Legal Standard
Litigants generally “may not seek discovery from any source before the parties have
conferred as required by Rule 26(f), except … when authorized by these rules, by stipulation, or
by court order.” Fed. R. Civ. P. 26(d)(1). Expedited discovery may be warranted, though, in cases
in which the defendant’s identity is unknown. See, e.g., Minnetonka Moccasin Co., Inc. v. Does,
Civ. No. 22-87 (PJS/TNL), 2022 WL 1055746, at *2 (D. Minn. Apr. 8, 2022) (citing Strike 3 Holdings, LLC v. Doe, No. 18-cv-778 (PJS/HB),2018 WL 2278111
, at *3 (D. Minn. May 18, 2018)). Although the Eighth Circuit has not articulated a standard governing when expedited discovery is appropriate, courts in this district typically apply a “good cause standard.” Council on Am.-Islamic Rels.—Minnesota v. Atlas Aegis, LLC,497 F. Supp. 3d 371
, 380 (D. 5 Strike 3 identifies Comcast Cable as the ISP in the following cases: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3854 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 23- cv- 3857 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-204 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-205 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-206 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-207 (PJS/DJF) (ECF No. 5); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-1060 (PJS/DJF) (ECF No. 5). Strike 3 identifies Spectrum as the ISP in the following cases: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3855 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-201 (PJS/DJF) (ECF No. 5); Strike 3 Holdings, LLC v. Doe, No. 24-cv-202 (PJS/DJF) (ECF No. 5); and Strike 3 Holdings, LLC v. Doe, No. 24-cv-208 (PJS/DJF) (ECF No. 5). Strike 3 identifies US Internet Corp as the ISP in the following case: Strike 3 Holdings, LLC v. Doe, No. 23-cv-3856 (PJS/DJF) (ECF No. 5). Minn. 2020). “Under the good cause standard, the party seeking expedited discovery must show that the need for expediting, in consideration of administration of justice, outweighs prejudice to the responding party.” Id. at 380 (internal quotation marks and citation omitted). In similar cases Strike 3 filed in 2018 and 2023, courts in this district applied the factors set forth in Arista Records, LLC v. Doe,604 F.3d 110, 119
(2d Cir. 2010): (1) the concreteness of the plaintiff’s showing of a prima facie claim of actionable harm, (2) the specificity of the discovery request, (3) the absence of alternative means to obtain the subpoenaed information, (4) the need for the subpoenaed information to advance the claim, and (5) the objecting party’s expectation of privacy. Based on these factors, the courts in the majority of these cases found expedited discovery was appropriate. See, e.g., Strike 3 Holdings, LLC v. Doe,2023 WL 8449227
(D. Minn. Dec. 6, 2023) (finding good cause under the Arista Records factors to allow expedited discovery); Strike 3 Holdings, LLC v. Doe,2023 WL 4864279
(D. Minn. July 31, 2023) (same); Strike 3 Holdings, LLC v. Doe,2023 WL 4074544
(D. Minn. June 20, 2023) (same); Strike 3 Holdings, LLC v. Doe,2023 WL 3336809
(D. Minn. May 10, 2023) (same); Strike 3 Holdings, LLC v. Doe,2023 WL 2728821
, at *3 (D. Minn. March 31, 2023) (same); Strike 3 Holdings, LLC v. Doe,330 F.R.D. 552
, 556 (D. Minn. 2019) (vacating order that denied Strike 3’s motion for leave to serve a third-party subpoena based on the Arista Records factors); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS),2018 WL 4210202
, at *2-3 (D. Minn. Sept. 4, 2018) (same); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-777 (JRT/BRT),2018 WL 2078707
, at *1-3 (D. Minn. May 4, 2018) (finding good cause under the Arista Records factors to allow expedited discovery); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-771 (DWF/HB),2018 WL 2278110
, at *5 (D. Minn. May 18, 2018) (same); Strike 3 Holdings, LLC v. Doe, Civ. No. 18- 778 (PJS/HB),2018 WL 2278111
, at *5-6 (D. Minn. May 18, 2018) (same); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-779 (WMW/SER), slip op. at 8-10 (D. Minn. May 25, 2018) (same). But see Strike 3 Holdings, LLC v. Doe,329 F.R.D. 606
, 610 (D. Minn. 2018) (denying motion to serve third-party subpoena based on privacy concerns), vacated, Strike 3 Holdings, LLC v. Doe,330 F.R.D. 552
, 556 (D. Minn. 2019); Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS), slip op. (D. Minn. April 30, 2018) (same), vacated, Strike 3 Holdings, LLC v. Doe, Civ. No. 18-774 (DWF/DTS),2018 WL 4210202
, at *2-3 (D. Minn. Sept. 4, 2018); Strike 3 Holdings, LLC, v. Doe, Civ. No.18-768 (DSD/FLN),2018 WL 1924455
(D. Minn. Apr. 24, 2018). Applying the Arista Records factors to the twelve cases now before the Court, the Court concludes expedited discovery is warranted because: (1) Strike 3 has stated an actionable claim for copyright infringement;6 (2) the discovery request is specific in that it seeks only each Defendant’s name and address; (3) there are no alternative ways to obtain the information;7 (4) the case cannot proceed without each Defendant’s identity; and (5) with appropriate privacy guardrails in place as set forth below, Strike 3’s right to use the judicial process to pursue its copyright claims 6 “The elements of copyright infringement are: (1) ownership of a valid copyright; and (2) copying of original elements of the copyrighted work.” Warner Bros. Entm’t v. X One X Prods.,644 F.3d 584, 595
(8th Cir. 2011). Strike 3 sufficiently alleges that it is the owner of copyrighted works, that each Defendant copied and distributed the works owned by Strike 3, and that Strike 3 did not authorize the Defendant’s distribution of the copyrighted works. (ECF No. 1 ¶¶ 2, 4, 43, 45.) 7 While the Digital Millennium Copyright Act (“DMCA”) establishes a procedure enabling a copyright holder to obtain and serve subpoenas on ISPs for identification of an alleged infringer under certain conditions, the Eighth Circuit held that the process does not apply when, as in these cases, an ISP merely acts as a conduit for data transferred between two internet users. In re Charter Communications,393 F.3d 771, 775-77
(8th Cir. 2005). When an ISP acts only as a conduit, the Eighth Circuit endorsed the procedure Strike 3 employed here, namely, to identify alleged infringers by filing a “John Doe” lawsuit, along with a motion for third-party discovery of the identity of the otherwise anonymous “John Doe” defendant.Id.
at 775 n.3. outweighs each Defendant’s expectation of privacy. The Court is cognizant of the risk that a Defendant subscriber may not be the actual infringer, and yet could be implicated in a case involving sensitive and potentially embarrassing subject matter. See Strike 3 Holdings, LLC v. Doe,2023 WL 8449227
(D. Minn. Dec. 6, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 4864279
(D. Minn. July 31, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 4074544
(D. Minn. June 20, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 3336809
(D. Minn. May 10, 2023); Strike 3 Holdings, LLC v. Doe,2023 WL 2728821
, at *3 (D. Minn. March 31, 2023); Strike 3 Holdings, LLC v. Doe,2018 WL 4210202
, at *2 (D. Minn. Sept. 4, 2018); see also Media Prods., Inc. v. Does 1–26, No. 12-cv-3719,2012 WL 2190613
, at *1 (S.D.N.Y. June 12, 2012) (“The fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer.”) In light of these valid privacy concerns, the Court will issue a limited protective order to protect the rights of each unnamed Defendant subscriber, as set forth below.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe subscriber
assigned IP address 73.164.95.245, No. 23-cv-3854 (PJS/DJF) (ECF No. [5]), is GRANTED as
set forth in paragraphs 13-18 below.
2. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 71.10.65.161, No. 23-cv-3855 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
3. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 67.220.4.133, No. 23-cv-3856 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
4. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.242.4.56, No. 23-cv-3857 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
5. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 71.13.47.50, No. 24-cv-201 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
6. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 47.12.23.204, No. No. 24-cv-202 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
7. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.62.152.105, No. No. 24-cv-204 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
8. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe subscriber
assigned IP address 98.61.172.59, No. No. 24-cv-205 (PJS/DJF) (ECF No. [5]), is GRANTED
as set forth in paragraphs 13-18 below.
9. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 66.41.98.159, No. No. 24-cv-206 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
10. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.65.57.19, No. No. 24-cv-207 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
11. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 24.179.181.116, No. 23-cv- No. 24-cv-208 (PJS/DJF) (ECF
No. [5]), is GRANTED as set forth in paragraphs 13-18 below.
12. Plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference, filed in Strike 3 Holdings, LLC v. John Doe
subscriber assigned IP address 73.242.59.238, No. 24-cv-1060 (PJS/DJF) (ECF No. [5]), is
GRANTED as set forth in paragraphs 13-18 below.
13. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on the
Defendant’s Internet Service Provider, seeking only the name and address of the subscriber
assigned to the IP address identified in the Complaint for the time periods of the alleged infringing
activity outlined in Exhibit A to Plaintiff’s Complaint (ECF No. 1-1).
14. The subpoena must provide a minimum of sixty (60) days’ notice before any
production is required and shall be limited to one category of documents identifying the particular
subscriber identified in the Complaint. The requested information shall be limited to the name and
address of the subscriber during the time period of the alleged infringing activity referenced in
Exhibit A to the Complaint (ECF No. 1-1). The Internet Service Provider may seek a protective
order if it determines there is a legitimate basis for doing so.
15. The Internet Service Provider shall have fourteen (14) calendar days after service of
the subpoena to notify the subscriber that Plaintiff has subpoenaed the subscriber’s identity. The
subscriber whose identity has been subpoenaed shall then have forty-five (45) calendar days from
the date of the notice to seek a protective order, file any responsive pleading, or both.
16. Plaintiff shall serve a copy of this Order with any subpoena obtained and served
pursuant to this Order on the Internet Service Provider. The Internet Service Provider, in turn,
must provide a copy of this Order along with the required notice to the subscriber whose identity
is sought pursuant to this Order. When providing its response or objection to the subpoena, the
Internet Service Provider must certify that it has provided a copy of this Order and the required
notice to the subscriber and state the date such notice was provided. No other discovery is
authorized at this time.
17. Plaintiff must not publicly disclose the information disclosed in response to the
subpoena until the Defendant has had an opportunity to file a motion with the Court allowing the
Defendant to proceed in this litigation anonymously, and the Court rules on any such motion. If
the Defendant does not file a motion for leave to proceed anonymously within forty-five (45)
calendar days after his or her information is disclosed to Plaintiff’s counsel, this limited protective
order will expire. If the Defendant includes identifying information in his or her request to proceed
anonymously, the Court finds good cause to order the request temporarily filed under seal until the
Court rules on the request and considers whether such materials should remain under seal.
18. On or before June 11, 2024, Plaintiff shall file a status report in each of the twelve
cases addressed in this Order. The status report shall outline the progress of the discovery
authorized by this Order and must not include any information regarding the Defendant’s identity.
Dated: April 11, 2024 s/ Dulce J. Foster
DULCE J. FOSTER
United States Magistrate Judge Reference
- Status
- Unknown