Bringing a lawsuit against an individual known only by an Internet Protocol address raises a very big issue: WHO do you sue? U.S. Magistrate Judge Mitch Dembin resolved that issue in Strike 3 Holdings, LLC v Doe, 2023 U.S. Dist. LEXIS 33562 (Feb 23, 2023).
The case involved a plaintiff who claimed the unknown defendant used a BitTorrent file distribution network to infringe on the plaintiff’s copyrighted works. Armed only with the IP address, the Plaintiff sought early discovery from the third-party Internet Service Provider to identify Doe Defendant.
As a general rule, discovery is not allowed before the Rule 26(f) conference. It is mighty hard to hold a Rule 26(f) conference without the Defendant. The way out of that conundrum is seeking relief from the Court to serve an early Rule 45 discovery request to a third-party.
The Ninth Circuit has held that early discovery to determine the identities of parties is proper, unless “unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Strike 3 Holding, at *2-3, citing 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 2012 U.S. Dist. LEXIS 62980, at *3 (S.D. Cal. May 8, 2012)
There is a three-part test for granting a request for early discovery to identify Doe Defendants:
- [T]the “plaintiff should identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court.”
- [T]he plaintiff “should identify all previous steps taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant.
- [T]he “plaintiff should establish to the Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss.”
Strike 3 Holding, at *3, citing Columbia Ins. Co. v. seescandy.com 185 F.R.D. 573 (N.D.Cal. 1999) and Gillespie v. Civiletti 629 F.2d 637 (9th Cir. 1980)
The Court found the Plaintiff had met the requirements for early discovery. The Plaintiff’s application was granted, with specific service requirements for the ISP in responding, giving notice to the subscriber, and opportunities for quashing or modifying the subpoena.
Bow Tie Thoughts
Judge Dembin is a friend who retired in 2023.
Judge Dembin holds the record for presiding over the most mock trials at San Diego Comic Con, WonderCon, and San Diego Comic Fest. He is a true geek who proves the maxim about young people who grow up loving science fiction can become judges.
Judge Dembin also has serious eDiscovery credentials. Identifying Doe Defendants known only by an IP address is one of the many eDiscovery adjacent issues for those who wade into the Federal Rules of Civil Procedure.
As for Doe Defendants, there are many ways individuals can engage in online conduct that can give rise to liability. Infringing in copyright violations is one of those activities. However, early discovery is a way to lift the veil for those trying to hide behind an IP address.
Judge Dembin, thank you for the years of service. See you at Comic Con.