Unreported / Non-Citable
Background
Strike 3 Holdings filed this copyright action on September 25, 2026, alleging that an unidentified defendant used the BitTorrent protocol to download and distribute its adult films. The complaint identified the defendant only through the IP address 69.228.130.40. Strike 3 therefore sought leave, before any Rule 26(f) conference, to serve a third-party subpoena on the internet service provider and learn the subscriber’s true name and address. It argued that without that information it could not serve the complaint or pursue its claim.
Magistrate Judge Carolyn K. Delaney addressed the ex parte application in an October 28, 2026 order. She explained that Rule 26(d) ordinarily bars discovery before the parties confer under Rule 26(f), but early discovery may be authorized for good cause. In infringement cases, that relief is often limited to identifying Doe defendants. The court also applied the five Arista Records factors concerning the prima facie showing, request specificity, alternative sources, need for the information, and the defendant’s privacy interests, even though no defendant had appeared or moved to quash.
The Court’s Holding
The court found the first four factors favored Strike 3. Its download list supported a prima facie claim; the request was confined to identifying and contact information; the ISP was the only identified route to that information; and the action could not proceed without knowing whom to sue. But the privacy factor required safeguards. The court stressed that an IP subscriber is not necessarily the person who downloaded a film, particularly where routers and multiple devices share a connection. It also recognized the heightened embarrassment, reputational harm, and settlement pressure that could follow mistaken identification in a case involving pornographic films.
The application was granted only on the order’s terms. Strike 3 may subpoena the ISP solely for the true name and address of the person or entity assigned the IP address. Within ten days after obtaining the actual identity of the person or entity associated with the subject IP address, it must serve the order on that person unless the case has already been dismissed. Formal service of process requires another court order. The parties may voluntarily attend an informal telephone or Zoom conference to schedule a possible motion to quash and address service or waiver; attending alone does not waive service or constitute an appearance unless the potential defendant agrees to waive service or the case is resolved and a settlement is placed on the record.
Strike 3 must file a status report within 60 days addressing service of the order, any agreement to confer, and, if applicable, whether the parties seek a telephonic or in person conference, while continuing to identify the defendant as John or Jane Doe. If the identified subscriber decides not to attend an informal conference, that decision will lead to a further order substituting the identified defendant by name, permitting ordinary service of process, and commencement of the litigation. Until the court gives permission, Strike 3 may not reveal the defendant’s identity in or out of court. The order does not prevent the parties from settling without court participation before a conference or formal service.
Key Takeaways
- Early ISP discovery was justified by Strike 3’s prima facie showing and its inability to proceed without identifying the Doe defendant.
- The subpoena is limited to the subscriber’s true name and address rather than broader discovery.
- The court treated the weak link between an IP subscriber and an alleged downloader as a reason for procedural privacy protections.
- No formal service of process or disclosure of the defendant’s identity is permitted without further court authorization.
- A voluntary informal conference preserves the potential defendant’s ability to seek to quash without itself waiving service or creating an appearance, subject to the order’s stated exceptions.
Why It Matters
The order illustrates how a court can reconcile a copyright owner’s need to identify an anonymous defendant with the risk of accusing the wrong person. Rather than denying discovery altogether, it authorized a narrow subpoena and created a structured opportunity to challenge identification before ordinary litigation begins.
Its restrictions are especially important because the allegations concern adult films. The court expressly recognized that mistaken public identification could cause embarrassment and reputational damage and could pressure a subscriber into settlement merely to avoid exposure. The decision grants discovery, not a finding of infringement or liability.