Strike 3 Holdings, LLC v. Doe

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v.
JOHN DOE subscriber assigned IP address
67.186.136.110,
Defendant.
Civil Action No. 25-cv-13533-NMG
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR
LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO RULE 26(f)
CONFERENCE
LEVENSON, U.S.M.J.
Pursuant to Rule 26(d)(1) of the Federal Rules of Civil Procedure, Plaintiff Strike 3
Holdings, LLC (“Strike 3”) has filed a Motion for Leave to Serve a Third Party Subpoena Prior
to a Rule 26(f) Conference.1 Plaintiff seeks a court order to permit limited discovery into the
identity of Defendant, a John Doe known by the assigned Internet protocol address (“IP
address”) of 67.186.136.110, prior to a Rule 26(f) scheduling conference. Motion for Leave to
Serve Third Party Subpoena, Docket No. 8. Specifically, Strike 3 seeks leave to serve a subpoena
upon Defendant’s Internet service provider (“ISP”) for the purpose of obtaining Defendant’s
name and address. The motion is appropriate for determination by the Court. See 28 U.S.C. §
636(b)(1)(A).
1 There are a number of cases in this District filed by Strike 3 through the same counsel. Counsel
has filed similar motions in those cases. Those filings feature almost identical papers, with
substitutions made for the subscriber’s IP address. This Court has issued a similar order in those
cases.
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For the reasons identified below, the Court GRANTS the motion, but also issues a
protective order permitting Defendant to proceed anonymously using the “John Doe”
pseudonym.
I. 	Background
Taking Strike 3’s representations as true for purposes of deciding this motion, the Court
notes the following.
Strike 3 owns the copyrights to pornographic films that it distributes through DVDs and
through company-affiliated websites. Complaint, Docket No. 1, ¶¶ 2, 3. Strike 3 alleges that
Defendant used BitTorrent to infringe the copyrights of 24 of Strike 3’s films over an extended
period of time. Id. ¶ 4; see Complaint, Exhibit A, Docket No. 1-1. Strike 3 has filed nearly
identical complaints against other John Doe defendants in thousands of federal lawsuits across
the country in the last several years. See Strike 3 Holdings, LLC v. Doe, No. 1:18-cv-01075-
MCE-CKD, 2019 WL 935389, at *1 (E.D. Cal. Feb. 26, 2019) (“This case is one of
approximately 2,500 nearly-identical cases that plaintiff has filed across the country since
October 2017.”).
Strike 3 claims that its copyrights have been infringed by various individuals, including
the John Doe defendant in this case, who pirate videos anonymously on the Internet via
BitTorrent. Strike 3 claims that it has identified John Doe by IP address, and seeks to learn his or
her identity to be able to serve process.
The specifics of Strike 3’s contentions regarding the detection of infringement and the
identification of infringers are somewhat technical. Because the details have been reviewed
comprehensively in other judicial decisions, a brief summary will suffice.
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BitTorrent refers to a computing process known as the BitTorrent protocol, otherwise
known as “torrenting,” a method of downloading and sharing digital files. Complaint, Docket
No. 1, ¶¶ 4, 17; see generally Strike 3 Holdings, Inc. v. Doe, 621 F. Supp. 3d 145, 148 (D. Mass.
2022) (describing the torrenting process in detail). Instead of downloading files from a single
server, BitTorrent allows peers (i.e., users) to download a file that is held by many other peers
who engage with the same torrenting website. See Memorandum in Support of Motion for
Subpoena, Paige Decl., Docket No. 9-1, ¶ 21; Memorandum in Support of Motion for Subpoena,
Arco Decl., Docket No. 9-2, ¶ 45. BitTorrent also involves breaking a file into smaller pieces,
which are assigned unique identifiers that are recognized by torrenting software programs and
pieced back together as the downloaded file. Memorandum in Support of Motion for Subpoena,
Paige Decl., Docket No. 9-1, ¶¶ 21–23.
Strike 3 represents that it uses a number of programs, including proprietary torrenting
software, to emulate the activity of an actual BitTorrent peer and record the torrenting process
for files believed to be films copyrighted by Strike 3. Arco Decl., Docket No. 9-2, ¶¶ 44–89. The
resultant record includes a variety of information, including the IP addresses of the peers who
participate in torrenting the file. Id. ¶¶ 60–63. Strike 3 uses a third-party database to identify the
ISPs and the geographic locations associated with IP addresses of those participating peers. Id.
¶¶ 77–79. Strike 3 has hired someone to watch and visually compare the torrented files with the
copyrighted films, and that person confirms that the torrented file is identical or substantially
similar to the copyrighted matter. See Memorandum in Support of Motion for Subpoena, Stalzer
Decl., Docket No. 9-3, ¶¶ 7–11. Strike 3 alleges that the IP address identified in the Complaint is
associated with Strike 3’s records for 24 torrented files that are identical or substantially similar
to Strike 3’s copyrighted films. See Complaint, Exhibit A, Docket No. 1-1.
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The anonymizing mechanics of BitTorrent are such that “Internet service providers are
the only entities that can link an IP address to its subscriber.” Strike 3 Holdings, LLC v. Doe, 964
F.3d 1203, 1206 (D.C. Cir. 2020). Accordingly, Strike 3 contends that a subpoena to the ISP is
the only means of determining the identity of any BitTorrent peer who allegedly infringed the
copyright of Strike 3’s films.
II. 	Discussion
Rule 26(d) of the Federal Rules of Civil Procedure allows a party to seek discovery prior
to the Rule 26(f) scheduling conference in limited circumstances, including by court order. Fed.
R. Civ. P. 26(d)(1). Although Rule 26(d) does not itself set a standard for permitting court-
ordered early discovery, courts in this circuit typically require a “good cause” showing.2 See,
e.g., Strike 3 Holdings, 621 F. Supp. 3d at 149; Higgins v. Huhtamaki, Inc., No. 1:21-CV-00369-
NT, 2022 WL 523344, at *1 n.3 (D. Me. Feb. 21, 2022); Jimenez v. Nielsen, 326 F.R.D. 357, 361
(D. Mass. 2018). The First Circuit has not set the requirements for a “good cause” showing, but
courts in the circuit have applied the factor-based analysis identified in Sony Music Ent. Inc. v.
Does 1–40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004):
(1) a concrete showing of a prima facie claim of actionable harm;
(2) specificity of the discovery request; (3) the absence of alternative
means to obtain the subpoenaed information; (4) a central need for
2 The origin of the “good cause” standard is that, prior to the 2015 amendments to Rule 26, Rule
26(b)(1) provided that “[f]or good cause, the court may order discovery of any matter relevant to
the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1) (2015). The 2015
amendments to Rule 26 are silent on the standard for court-ordered discovery, and Rule 26(b)
now includes only the relevance and proportionality standard that applies to the scope of
discovery generally, “unless otherwise limited by court order.” Fed. R. Civ. P. 26(b)(1)
(emphasis added). One Court of Appeals has questioned whether a good cause showing is still
appropriate under the current rule but has not ruled on the issue. See Strike 3 Holdings, LLC v.
Doe, 964 F.3d 1203, 1207 n.2. (D.C. Cir. 2020). Strike 3 argues that early discovery is warranted
under either the “good cause” standard or the general relevance and proportionality standard. See
Memorandum in Support of Motion for Subpoena, Docket No. 9 at 5 n.2.
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the subpoenaed information to advance the claim; and (5) the party’s
expectation of privacy.
326 F. Supp. 2d at 564–65 (citations omitted); see Strike 3 Holdings, 621 F. Supp. 3d at 149–51
(applying Sony Music analysis to determine that plaintiff had shown good cause for early
discovery into identity of anonymous defendant); London-Sire Records, Inc. v. Doe 1, 542 F.
Supp. 2d 153, 164 (D. Mass. 2008) (same); see also Media Prods., Inc. v. Does 1–64, No. 12-cv-
30083-MAP, 2013 WL 1092123, at *6 (D. Mass. Feb. 7, 2013), report and recommendation
adopted, No. 12-cv-30083-MAP, 2013 WL 1091715 (D. Mass. Mar. 14, 2013) (“The First
Circuit has not addressed the proper standard for determining whether good cause exists for
expedited discovery.”).
The Court finds the Sony Music factors persuasive and will apply them in cases such as
this, which request court-ordered early discovery into the identity of an un-served anonymous
party.
As discussed below, the Court finds that Strike 3 has made an adequate “good cause”
showing under the Sony Music factors.3
A. Concrete Showing of Prima Facie Claim of Actionable Harm
The only claim in Strike 3’s Complaint is copyright infringement. Docket No. 1. “To
establish copyright infringement, the plaintiff must prove two elements: ‘(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.’” Perea v.
3 The same result would follow from the relevance and proportionality requirements of Rule
26(b). Several of the Sony Music factors correspond with relevance and proportionality. For
example, because there are no alternative means for Strike 3 to obtain the Defendant’s
identifying information, and because that information is necessary to serve process and allow the
litigation to progress, the subpoena to the ISP is both proportional to the needs of the case and
relevant. See Strike 3 Holdings, 621 F. Supp. 3d at 151 (“The Rule 26(b)(1) standard therefore
yields the same result as the good cause standard employing the Sony Music factors, namely,
allowing Strike 3 to serve the subpoena on Verizon seeking the subscriber’s name and address
together with the notice.”).
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Editorial Cultural, Inc., 13 F.4th 43, 52 (1st Cir. 2021) (quoting Latin Am. Music Co. Inc. v.
Media Power Grp., Inc., 705 F.3d 34, 38 (1st Cir. 2013)). Strike 3 alleges in the Complaint that it
owns the copyrights to films which are registered with the United States Copyright Office. Strike
3 also has described its process for identifying IP addresses that have participated in using the
BitTorrent protocol to assemble digital files that Strike 3 believes to be copies of its copyrighted
films. Using this process, Strike 3 identified 24 files that it claims have been pirated via
BitTorrent using the IP address alleged to be controlled by Defendant.
Strike 3 has also plausibly alleged that it is harmed by the torrenting of films that are
otherwise only offered through individual sale, licensed broadcast, or access to subscription-
based websites. See Complaint, Docket No. 1, ¶¶ 13, 16. Accordingly, Strike 3 has made a
concrete showing of a prima facie claim for copyright infringement and has identified resultant
harm.
B. Specificity of the Discovery Request
The proposed subpoena to Defendant’s ISP “will only demand the true name and address
of Defendant.” Docket No. 9 at 2. This seems appropriately tailored to the bona fide needs of this
case. Other courts have found that such a request is sufficiently specific. See Strike 3 Holdings,
621 F. Supp. 3d at 150 (collecting cases).
C. Absence of Alternative Means to Obtain the Information
Strike 3 represents that the ISP “is the only party with the information necessary to
identify Defendant by correlating the IP address with John Doe’s identity.” Docket No. 9 at 1–2.
This is facially plausible, and other courts have found that plaintiffs in similar BitTorrent
copyright infringement cases have no other way to identify anonymous defendants. See Strike 3
Holdings, 621 F. Supp. 3d at 150 (collecting cases).
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D. A Central Need For the Subpoenaed Information to Advance the Claim
Strike 3 states that, without the Defendant’s name and address, it “cannot serve
Defendant nor pursue this lawsuit and protect its copyrights.” Docket No. 9 at 2. This, too,
makes sense. “Without names and addresses, the plaintiffs cannot serve process, and the
litigation can never progress.” Strike 3 Holdings, 621 F. Supp. 3d at 150 (quoting London-Sire,
542 F. Supp. 2d at 179.).
E. The Party’s Expectation of Privacy
Courts have found that there is a limited expectation of privacy for individuals who pirate
copyrighted material. See, e.g., Sony Music, 326 F. Supp. 2d at 566 (“[D]efendants have little
expectation of privacy in downloading and distributing copyrighted [works] without
permission.”).
That said, as Strike 3 acknowledges, the privacy interests at issue here are heightened by
the nature of the films in question. Publicly associating an individual’s name with a federal
lawsuit for copyright infringement of pornographic films could cause embarrassment and
humiliation. See Arco Decl., Docket No. 9-2, ¶ 34. Strike 3 notes that other “courts have found it
appropriate to issue a protective order establishing procedural safeguards such as allowing a
defendant to proceed pseudonymously.” Docket No. 9 at 9.
The Court cannot ignore the risk, which other courts have noted in cases involving Strike
3 and other copyright holders of pornographic films, that the embarrassing nature of the litigation
might coercively drive settlement agreements. See, e.g., Strike 3 Holdings, LLC v. Doe, 2019 WL
78987, at *4 (S.D.N.Y. Jan. 2, 2019) (“[C]opyright holders such as Plaintiff are repeat litigants
who have, in the past, engaged in . . . coercive settlement practices.”) (citing cases). One court, in
a similar procedural posture, requested supplemental briefing concerning Strike 3’s litigation
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history. See Strike 3 Holdings, LLC v. Doe, 331 F.R.D. 14, 18 (E.D.N.Y. 2019). The court found
that Strike 3 invariably discontinues litigation after successfully moving for issuance of an ISP
subpoena, either through settlement or dismissal. See id. (“[O]f the hundreds of virtually
identical cases Strike 3 has filed in this district recently, not one has resulted in adversarial
testing of Strike 3’s claims, and only one has seen an identified defendant file an answer.”). See
also Order, Strike 3 Holdings, LLC v. Doe, No. 22-CV-11752-WGY (D. Mass. Oct. 25, 2022)
(noting the “large number of these cases both in this Court and elsewhere”).
Notwithstanding Strike 3’s representation that it is proceeding in good faith and “does
not seek to force anyone to settle unwillingly,” the Court agrees with other courts that a
protective order is appropriate in these circumstances to assuage privacy concerns. Docket No. 9
at 3; see Strike 3 Holdings, LLC v. Doe, No. 19-cv-00945-NGG-RLM, 2019 WL 4752094, at *3
(E.D.N.Y. Sept. 30, 2019) (“[A] protective order is particularly appropriate in BitTorrent
copyright infringement cases involving adult films (and especially in cases involving Strike 3)
because few of these cases move beyond the filing of a complaint and granting of a motion for
expedited discovery.”); Strike 3 Holdings, LLC v. Doe, 329 F.R.D. at 522 (finding good cause to
issue protective order where there is “substantial risk for false positive identifications that could
result in ‘annoyance, embarrassment, oppression, or undue burden or expense’” (quoting Fed. R.
Civ. P. 26(c)(1))).
The Court has reviewed protective orders issued in other cases brought by Strike 3 and
adopts a protective order similar to the one issued in Strike 3 Holdings, LLC v. Doe, No. 20-cv-
4501-WFK-VMS, 2021 WL 535218 (E.D.N.Y. Feb. 12, 2021). This protective order allows
Defendant to proceed anonymously, restricts the ability of Strike 3 to initiate settlement
negotiations absent court permission, and grants an extended period for Defendant to decide
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whether to initiate settlement discussions, file a motion to quash the subpoena, or otherwise
respond to the Complaint.
The near-total absence of litigated cases arising from the thousands of nearly identical
complaints filed by Strike 3 may mean that Strike 3 only sues infringers whose liability is
uncontestable and that it offers attractive settlement terms. But, given the nature of the
copyrighted materials at issue, it also may be that some prospective defendants would be driven
to settle out of a fear of being publicly embarrassed as consumers (illicitly or otherwise) of
particular pornographic materials. The First Circuit has noted that a “chilling effect” of this kind
may warrant permitting parties to proceed anonymously “in cases involving ‘intimate issues such
as sexual activities. . . .’” Doe v. Mass. Inst. of Tech., 46 F.4th 61, 71 (1st Cir. 2022) (quoting In
re Sealed Case, 971 F.3d 324, 327 (D.C. Cir. 2020)). It makes particular sense to do so in the
early phases of litigation, given Strike 3’s record of settling matters that never go beyond the
filing of a complaint. See id. at 73 (“District courts must be mindful that ‘the balance between a
party’s need for anonymity and the interests weighing in favor of open judicial proceedings may
change as the litigation progresses.’” (quoting Does I thru XXIII v. Advanced Textile Corp., 214
F.3d 1058, 1069 (9th Cir. 2000))).
In sum, with an appropriate protective order in place, the circumstances presented in this
case satisfy the Sony Music factors and weigh in favor of permitting early discovery into the
identity of Defendant. Strike 3 has made a showing of good cause and the Court will permit
Strike 3 to serve the requested subpoena upon Defendant’s ISP.
III. 	Conclusion
Subject to the conditions of the Protective Order, which is attached as Exhibit A,
including the provisions for Notice to Defendant, which is attached as Exhibit B, the Court
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GRANTS Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference (Docket No. 8) on Defendant’s ISP, Comcast Cable, to obtain Defendant’s name and
address.
The deadlines set in the attached Protective Order shall control the time within which
Plaintiff must serve Defendant.
Defendant’s ISP, Comcast Cable, shall provide Defendant with the following: the
Subpoena, the Protective Order (Exhibit A), and the Notice to Defendant (Exhibit B).
Failure to comply with any of the conditions of the Protective Order may result in an
award of sanctions.4
/s/ Paul G. Levenson
Date: December 11, 2025 	United States Magistrate Judge
4 The parties are advised that under Federal Rule of Civil Procedure 72(a) and Rule 2(b) of the
Rules for United States Magistrate Judges in the United States District Court for the District of
Massachusetts, any party seeking review by a district judge of these determination(s) and
order(s) must serve and file any objections within 14 days of receiving this order, unless a
different time is prescribed by the magistrate judge or a district judge. Such objections must
specifically designate the order, or part thereof, to be modified or set aside and the basis for
objection. The district judge will set aside any portion of the magistrate judge’s order that is
found to be clearly erroneous or contrary to law. The parties are further advised that failing to
follow the objection procedures of Rule 2(b) may preclude further appellate review. See Phinney
v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999); Sunview Condo. Ass’n v. Flexel Int’l,
Ltd., 116 F.3d 962, 964–65 (1st Cir. 1997).
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