Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 70.170.107.43
2:19-cv-00144
| D. Nev. | Feb 20, 2019Background
- Strike 3 Holdings sued a John Doe identified only by IP address 70.170.107.43 for alleged copyright infringement via BitTorrent and sought early discovery to learn the subscriber's identity from the ISP.
- Plaintiff’s investigator used geolocation (MaxMind) to trace the IP to this district and provided dates/times and the ISP in an exhibit to the complaint.
- Plaintiff moved ex parte for leave to serve a Rule 45 subpoena on the ISP before the Rule 26(f) conference, arguing it cannot identify or serve the defendant without the ISP’s records.
- Plaintiff argued it met the three-factor test for early discovery: sufficient identification of the Doe, good-faith efforts to locate the defendant, and a complaint that could withstand a motion to dismiss.
- The court found the requested subpoena narrowly tailored (limited to the true name and address), required attaching the order to the subpoena, directed the ISP to notify the subscriber, and set timelines for challenges and production.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether early discovery prior to Rule 26(f) is warranted to identify a Doe defendant by ISP records | Early, limited discovery is necessary because Plaintiff only has an IP address and cannot effect service without ISP disclosure | (ISP/DoE would argue) Early discovery is improper and discloses subscriber PII absent court order | Court granted limited early discovery under good-cause standard; allowed Rule 45 subpoena for name/address only |
| Whether Plaintiff identified the Doe with sufficient specificity to justify expedited discovery | IP address plus geolocation and timestamps sufficiently identify a real person within the district | (Implicit) IP-based identification is speculative and may not identify an actionable defendant | Court found the IP, geolocation, timestamps, and exhibit satisfy specificity requirement |
| Whether Plaintiff made good-faith efforts to locate the defendant before subpoenaing the ISP | Plaintiff searched public sources and employed a forensic investigator; no other methods available | (Implicit) Plaintiff could pursue alternative investigative measures or was seeking fishing expedition | Court concluded Plaintiff demonstrated prior good-faith efforts and met this factor |
| Whether the complaint could survive a motion to dismiss (prima facie claim) | Plaintiff alleged copyright ownership and unauthorized reproduction/distribution via BitTorrent | (Implicit defense) Allegations may be insufficient or misattributed to subscriber | Court held the complaint sufficiently pleaded ownership and infringement to justify discovery |
Key Cases Cited
- Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) (articulates three-factor test for early discovery to identify Doe defendants)
- Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) (early discovery permitted when identities unknown unless discovery won't uncover them or complaint would be dismissed)
- Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273 (N.D. Cal. 2002) (good-cause balancing for expedited discovery)
- Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) (elements of a copyright infringement claim)
- Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) (copyright ownership and infringement standards)
- Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406 (9th Cir. 1977) (district court discretion in discovery to determine jurisdictional facts)
- Plant v. Various John Does, 19 F. Supp. 2d 1316 (S.D. Fla. 1998) (discovery to identify Doe defendants must show act giving rise to liability occurred)