Many people are either confused, do not know what to make of, or may even think it is a phishing expedition when a letter is received from their internet service provider (“ISP”) such as Comcast, Verizon, AT&T, CenturyLink, Spectrum, Frontier, Cox, Optimum, Earthlink, Viasat, Altice, etc., informing them of a lawsuit by STRIKE 3 HOLDINGS, LLC, which concerns the illegal downloading and uploading of copyrighted materials.

The letters state the recipient has been identified as the subscriber of an Internet Protocol (“IP”) address, which has allegedly been used to download Strike 3’s copyrighted works. The ISP states it has received a subpoena to turn over records providing the recipient’s name and address, which is associated with the accused IP address. The letters provide a deadline by which time the ISP will deliver the recipient’s name and contact information to Strike 3 pursuant to the subpoena, unless there is a motion to quash or vacate the subpoena has been filed. The ISP says it cannot provide legal advice and strongly encourages the recipient to seek the advice of counsel.

If you receive one of these letters, do not ignore it. It is real and not a scam or a mistake.

Strike 3 is a producer of adult films that it sells, licenses, and distributes through the Blacked, Tushy, Vixen, and Blacked Raw adult websites and DVDs. As with regular movies and music, Strike 3’s adult content is often pirated, illegally downloaded, and copied without permission. To protect its copyrights and pursue infringers, Strike 3 hires forensic investigators to track the transmission, downloading, and uploading of its works on the BitTorrent File Distribution Network platform. This platform allows users to download content while simultaneously uploading it to other users. Through their software, the investigators record, trace, and identify when files are downloaded or uploaded using a specific IP address. Through prolonged surveillance, the investigators record the number of works an IP address is used to download and turns this information over to Strike 3’s attorneys who bring copyright infringement lawsuits in Federal Court, or most recently, in Florida County Court for Miami-Dade County.

Since Strike 3 does not know the name of the individual associated with a particular IP address, it seeks permission to conduct expedited pre-answer discovery in the form of serving a subpoena on the ISP, who is the only entity that can connect the IP address with the name of an individual. While some courts and judges have denied Strike 3’s requests for early discovery, those decisions generally get overturned and most courts allow the subpoena but require safeguards such as anonymity, confidentiality, and time for the prospective individual defendant to challenge or object to the subpoena.

In general, parties “may not initiate discovery prior to satisfying the meet and confer requirement of Fed. R. Civ. P. 26(f).” Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012). Specifically, under Rule 26(d)(1), Fed. R. Civ. P., “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” except in limited proceedings delineated in Rule 26(a)(1)(B), or “when authorized by these rules, by stipulation, or by court order.” “[C]ourts may in some instances order earlier discovery.” Digital Sin, 279 F.R.D. at 241 (citing Fed. R. Civ. P. 26(d)). See, e.g., Strike 3 Holdings, LLC v. Doe, No. 3: 17-CV-1680 (CSH), 2017 WL 5001474, at *2 (D. Conn. Nov. 1, 2017) (“[A] party may engage in discovery before such a [26(f)] conference pursuant to a court order.”) (quoting Malibu Media, LLC v. John Doe Subscriber Assigned IP Address, No. 1:16-CV-02462 (AJN), 2016 WL 2894919, at *2 (S.D.N.Y. May 16, 2016)) (citing Fed. R. Civ. P. 26(d)(1)).

When considering whether to grant a motion for expedited discovery prior to a Rule 26(f) conference, courts apply a “flexible standard of reasonableness and good cause.” Malibu Media, LLC, 2016 WL 2894919, at *2 (gathering cases); see also Arista Records LLC v. Does 1-4, 589 F. Supp. 2d 151, 152-53 (D. Conn. 2008) (applying “good cause” standard to request for expedited discovery); see generally 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2046.1 (3d ed. 2011) (“Although [Rule 26(d)] does not say so, it is implicit that some showing of good cause should be made to justify such an order, and courts presented with requests for immediate discovery have frequently treated the question whether to authorize early discovery as governed by a good cause standard.”).

In evaluating subpoenas seeking identifying information from ISPs regarding subscribers who are parties to copyright infringement litigation, courts have examined the following factors:

  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.

[Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (quoting Sony Music Entm’t , Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004)).]

If application of these principal factors confirms that Strike 3 is entitled to the requested subpoena, the motion for early discovery will be granted for “good cause.” Because Strike 3’s complaints adequately allege copyright infringement, the requested discovery is narrowly tailored and specific, there is no other way for Strike 3 to obtain the IP subscriber’s identity, and sufficient safeguards are put in place to protect the subscriber’s privacy and identity, courts will generally grant Strike 3’s request to subpoena the ISP.

Once the ISP receives the subpoena, it will locate the subscriber’s information and send him or her a notification letter that it received the subpoena and will turn over the subscriber’s information. If you receive one of these letters, do not hesitate to contact an experienced attorney at Stark & Stark. If you don’t take action, Strike 3 will get your name and address, amend its complaint, and then serve you at your home with the amended complaint. If you ignore the complaint, Strike 3 will obtain default and apply for default judgment against you. Since virtually all of these infringement cases settle early on, it is in your best interest to obtain representation and attempt to reach a settlement.