United States District Court 

EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION 

 

STRIKE 3 HOLDINGS, LLC 

v. 

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JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

70.121.19.190 

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CIVIL NO. 4:22-CV-565-ALM 

LEAD CASE 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

70.119.84.107 

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CIVIL NO. 4:22-CV-645-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

47.185.150.56

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CIVIL NO. 4:22-CV-882-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

47.186.67.45

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CIVIL NO. 4:22-CV-884-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

172.124.179.96

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CIVIL NO. 4:22-CV-885-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

47.234.195.202

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CIVIL NO. 4:22-CV-889-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

72.180.7.87

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CIVIL NO. 4:22-CV-890-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

107.138.115.191

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CIVIL NO. 4:22-CV-891-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

47.185.236.69

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CIVIL NO. 4:22-CV-950-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

104.187.79.193

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CIVIL NO. 4:22-CV-951-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

35.146.251.7

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CIVIL NO. 4:23-CV-50-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

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CIVIL NO. 4:23-CV-51-ALM 

Case 4:23-cv-00270-ALM Document 5 Filed 06/13/23 Page 1 of 9 PageID #: 57
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47.185.213.202 § 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

104.7.155.163

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CIVIL NO. 4:23-CV-106-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

76.183.183.152

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CIVIL NO. 4:23-CV-270-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

72.191.15.152

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CIVIL NO. 4:23-CV-273-ALM 

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

72.180.24.205

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CIVIL NO. 4:23-CV-275-ALM 

MEMORANDUM OPINION AND ORDER 

 Pending before the Court are Plaintiff’s Motions for Leave to Serve a Third-Party 

Subpoena Prior to a Rule 26(f) Conference, as set forth below. Having considered the motions and 

the relevant pleadings, the Court finds that the motions should be GRANTED. 

BACKGROUND 

Plaintiff Strike 3 Holdings LLC (“Strike 3”) owns the copyright for a number of adult films 

that it distributes via its streaming websites and DVDs. In each of the consolidated cases, Strike 3 

alleges that the John Doe Defendants (“John Does”) used a BitTorrent protocol to steal Strike 3’s 

work on a “grand scale.”1

 Using the protocol, the John Does downloaded Strike 3’s films and 

redistributed those films to others without Strike 3’s permission, thereby infringing Strike 3’s 

copyrights. Strike 3 discovered that the various John Does infringed their copyrights by utilizing 

an infringement detection system, which identified the John Does by their IP addresses. Now, 

1

 BitTorrent refers to “[a] proprietary name for: a peer-to-peer file transfer protocol for sharing large amounts of data 

over the Internet, in which each part of a file downloaded by a user is transferred to other users in turn” or “a software 

client which transfers files using this protocol.” OXFORD ENG. DICTIONARY (3d ed. 2012). 

Case 4:23-cv-00270-ALM Document 5 Filed 06/13/23 Page 2 of 9 PageID #: 58
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Strike 3 wishes to uncover the identities of the John Does so that they may be served with process 

in these actions. To do so, Strike 3 asserts that it must be permitted to issue non-party subpoenas 

to the John Does’ internet service providers (individually, “ISP,” and collectively, “ISPs”) 

requesting the John Does’ identifying information. Therefore, Strike 3 filed individual motions to 

serve third-party subpoenas on the various John Does’ ISPs in each of the consolidated cases.2

LEGAL STANDARD 

Federal Rule of Civil Procedure 26(d)(1) provides that a party may not seek discovery from 

any source before the parties have a conference except in proceedings exempted by Rule 

26(a)(1)(B) or when authorized by the Federal Rules, by stipulation, or by court order. FED. R.

CIV. P. 26(d)(1). Although the Federal Rules do not provide an exact standard for a court’s granting 

such authorization, several other federal courts within the Fifth Circuit, including the Eastern 

District of Texas, have used a “good cause” standard to determine whether a party is entitled to 

early discovery. See, e.g., Huawei Techs. Co. v. Yiren Huang, No. 4:17-CV-893, 2018 WL 

10127086, at *1 (E.D. Tex. Feb. 13, 2018); Combat Zone Corp. v. Does 1–2, No. 2:12-CV-00509, 

2012 WL 6684711, at *1 (E.D. Tex. Dec. 21, 2012); Ensor v. Does 1–15, No. A-19-CV-00625, 

2019 WL 4648486, at *1 (W.D. Tex. Sept. 23, 2019); Greenthal v. Joyce, No. 4:16-CV-41, 

2016 WL 362312, at *1 (S.D. Tex. Jan. 29, 2016); St. Louis Grp. v. Metals & Additives Corp., 

275 F.R.D. 236, 239–40 (S.D. Tex. 2011). 

To analyze the existence of good cause, “a court must examine the discovery request ‘on 

the entirety of the record to date and the reasonableness of the request in light of all the surrounding 

circumstances.’” Huawei, 2018 WL 10127086, at *1 (quoting St. Louis Group, 275 F.R.D. at 239). 

In a good-cause analysis, the court weighs five factors: (1) whether the plaintiff has made a prima 

2

 Strike 3 alleges that the ISPs for the relevant John Does are Spectrum, Frontier Communications, and AT&T UVerse. 

Case 4:23-cv-00270-ALM Document 5 Filed 06/13/23 Page 3 of 9 PageID #: 59
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facie case of actionable harm; (2) the specificity of the discovery request; (3) the absence of 

alternative means to obtain the subpoenaed information; (4) whether there is a central need for the 

subpoenaed information to advance the claim; and (5) the user’s expectation of privacy. Combat 

Zone, 2012 WL 6684711, at *1 (citing Well Go USA, Inc. v. Unknown Participants in Filesharing 

Swarm, No. 4:12-CV-00963, 2012 WL 4387420, at *1 (S.D. Tex. Sept. 25, 2012)). 

Specifically, when “a party seeks a subpoena for identifying information of anonymous 

Internet users . . . ‘the court must also balance the need for disclosure against the defendant’s 

expectation of privacy.’” Ensor, 2019 WL 4648486, at *2 (quoting Malibu Media, LLC v. Doe, 

SA-19-CV-00601, 2019 WL 3884159, at *1 (W.D. Tex. Aug. 16, 2019)). The court, when 

determining whether to authorize early discovery, enjoys “broad discretion to tailor discovery 

narrowly and to dictate the sequence of discovery.” Arista Records LLC v. Does 1–19, 

551 F.Supp.2d 1, 6 (D.D.C. 2008) (quoting Crawford–El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 

1584, 140 L.Ed.2d 759 (1998)). 

ANALYSIS

The Court concludes that Strike 3 has demonstrated good cause and thus is entitled to 

limited early discovery for the purpose of identifying the unknown defendants. Furthermore, the 

Court finds that Strike 3’s subpoenas adequately balance the need for disclosure with the John 

Does’ expectations of privacy. 

I. Strike 3 Demonstrates Good Cause for Early Discovery 

Strike 3 must show good cause to be entitled to early discovery, which requires the Court 

to balance five factors: (1) whether the plaintiff has made a prima facie case of actionable harm; 

(2) the specificity of the discovery request; (3) the absence of alternative means to obtain the 

subpoenaed information; (4) whether there is a central need for the subpoenaed information to 

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advance the claim; and (5) the user’s expectation of privacy. Combat Zone, 2012 WL 6684711, at 

*1. All five factors weigh in favor of granting Strike 3 early discovery. 

Strike 3 Has Made a Prima Facie Case of Actionable Harm. 

The Copyright Act gives a copyright owner “the exclusive right to reproduce the 

copyrighted work and display it publicly.” BWP Media USA, Inc. v. T & S Software Assocs., Inc., 

852 F.3d 436, 438 (5th Cir. 2017) (quoting 17 U.S.C. § 106(1), (5)) (cleaned up). “Anyone who 

violates any of the exclusive rights of the copyright owner as provided by section 106 is an 

infringer. Id. (quoting 17 U.S.C. § 501(a)) (cleaned up). Thus, generally, a plaintiff must prove 

two elements to establish copyright infringement: (1) the plaintiff’s ownership of a valid copyright; 

and (2) the defendant’s copying of constituent elements of the work that are original. Id. (citing 

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 

(1991)). 

Strike 3 alleges that it is the owner of the copyright being infringed and that the John Does 

have reproduced or distributed the copyrighted work without Strike 3’s authorization using 

internet accounts identifiable by IP addresses. In support of these allegations, Strike 3 has 

presented affidavit testimony setting forth that Strike 3 owns the copyright at issue and that 

copyrighted works were uploaded or downloaded via the alleged IP addresses. See, e.g., (Case No. 

4:22-cv-565, Dkt. #5, Exhibit 1). Thus, Strike 3 has established a prima facie copyrightinfringement claim, and this factor weighs in favor of granting its motions for leave to serve thirdparty subpoenas. See FUNimation Ent. v. Does, 1 – 1,427, No. 2:11-CV-269, 2012 WL 12897376, 

at *2 (E.D. Tex. Mar. 16, 2012); Combat Zone, 2012 WL 6684711, at *2. 

Strike 3’s Discovery Requests are Specific. 

From the ISPs, Strike 3 seeks only the John Does’ contact information—the legal names 

and physical addresses of each John Doe—so that Strike 3 can properly serve them. Strike 3’s 

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“discovery request is sufficiently specific to establish a reasonable likelihood that the discovery 

request would lead to identifying information that would make possible service upon particular 

defendants who could be sued in federal court.” FUNimation, 2012 WL 12897376, at *2. Thus, 

this factor also weighs in favor of granting Strike 3’s motions. See Combat Zone, 2012 WL 

6684711, at *2 (holding that, where the subpoena sought only the name, addresses, phone 

numbers, email addresses, and media access control addresses of the unidentified defendant, the 

discovery request was sufficiently “specific”). 

Strike 3 Has No Alternative Means to Obtain the Subpoenaed Information and Strike 3 

Has a Central Need for the Information. 

Strike 3 has already taken considerable steps on its own to uncover the John Does’ IP 

addresses, which Strike 3 was successful in obtaining. But Strike 3 has established that discovering 

the John Does’ legal names and physical addresses is not feasible without non-party subpoenas to 

the ISPs. See Combat Zone, 2012 WL 6684711, at *2 (finding that “without this Order . . . there 

does not seem to be any way for [Plaintiff] to identify the Defendants and, thus, to properly serve 

them”). Without the John Does’ names and addresses, Strike 3 will be unable to serve the John 

Does, making this information critical to the litigation. FUNimation, 2012 WL 12897376, at *2. 

Thus, the alternative-means and central-needs factors also weigh in favor of granting Strike 3’s 

motion. 

Defendants’ Privacy Interests will be Adequately Protected. 

 Finally, the Court considers the privacy interests at stake and the implications of these 

interests on Strike 3’s requests for leave to issue subpoenas. Courts have held that “[i]nternet 

subscribers do not have an expectation of privacy in their subscriber information as they already 

have conveyed such information to their Internet Service Providers.” West Bay One, Inc. v. Does 

1–1,653, 270 F.R.D 13, 15 (D.D.C. 2010) (citing, among others, Guest v. Leis, 255 F.3d 325, 335–

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36 (6th Cir. 2001) (“Individuals generally lose a reasonable expectation of privacy in their 

information once they reveal it to third parties.”)). Because the scope of Strike 3’s requested 

subpoenas is specific to names and physical addresses, and because the Court simultaneously 

enters a protective order, John Does’ privacy interests will be adequately protected. Therefore, the 

privacy-interests factor also favors granting Strike 3’s motion as to the ISP subpoenas. 

Strike 3 Is Entitled to Early Discovery 

 Based on the entirety of the record to date and the reasonableness of the request in light of 

all the surrounding circumstances, and considering the good-cause factors above, the Court 

concludes that Strike 3 has shown good cause to support the granting of its motions. Huawei, 

2018 WL 10127086, at *1 (quoting St. Louis Group, 275 F.R.D. at 239); Combat Zone, 2012 WL 

6684711, at *1 (citing Well Go USA, 2012 WL 4387420, at *1). 

II. Strike 3’s Subpoenas Are Sufficiently Tailored to Protect the John Doe Defendants’ Privacy 

Interests 

In balancing the need for disclosure of identifying information of anonymous internet users 

against the defendants’ expectation of privacy, a subpoena must be specific and adequately protect 

the defendants’ privacy interests. Well Go USA, 2012 WL 4387420, at *2. “Courts typically 

include a protective order to allow a defendant the opportunity to contest the subpoena, thereby 

protecting the user’s expectation of privacy.” Ensor, 2019 WL 464846, at *3 (citations omitted). 

Strike 3’s request that the ISP subpoenas seek only the names and physical addresses of 

the John Doe Defendants is sufficiently narrow and specific to adequately protect the John Does’ 

privacy interests when combined with an appropriate protective order. See Combat Zone Corp. v. 

Does 1–5, No. 3:12-CV-4005, 2012 WL 5289736, at *1 (N.D. Tex. Oct. 26, 2012) (granting leave 

to subpoena the names, addresses, telephone numbers, email addresses, and media access control 

addresses of Doe defendants); see also Ensor, 2019 WL 4648486, at *4 (explaining that the 

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discovery sought from website operators was “narrowly tailored to the extent that it [sought] the 

anonymous Internet user’s name, physical address, and IP address” but that the plaintiff's request 

for “any other information” relating to each anonymous user was not narrowly tailored and was 

acceptable “only to the extent it [sought] other contact information, i.e., the user’s email address”). 

The Court interprets the scope of Strike 3’s discovery requests as being limited to this specific 

contact information. 

CONCLUSION 

 It is therefore ORDERED that Plaintiff’s Motions for Leave to Serve a Third-Party 

Subpoena Prior to a Rule 26(f) Conference (Case No. 4:22-cv-882, Dkt. #4); (Case No. 4:22-cv885, Dkt. #4); (Case No. 4:22-cv-889, Dkt. #4); (Case No. 4:22-cv-890, Dkt. #4); (Case No. 4:22-

cv-891, Dkt. #4); (Case No. 4:22-cv-950, Dkt. #4); (Case No. 4:22-cv-951, Dkt. #4); (Case No. 

4:23-cv-50, Dkt. #4); (Case No. 4:23-cv-51, Dkt. #4); (Case No. 4:23-cv-106, Dkt. #4); (Case No. 

4:23-cv-270, Dkt. #4); and (Case No. 4:23-cv-275, Dkt. #4) are hereby GRANTED. 

The Court also enters the following Protective Order sua sponte to protect the respective 

interests of the parties and non-parties and to facilitate the progress of disclosure and discovery in 

this case. It is therefore ORDERED that: 

Strike 3 may immediately serve Rule 45 subpoenas to AT&T U-Verse, Spectrum, and 

Frontier Communications, which will be limited to the name, IP address, and physical address of 

the relevant John Doe Defendants currently identifiable only by IP address. A copy of this Order 

must be attached to each subpoena. 

Each ISP will have twenty (20) days from the date of service of the Rule 45 subpoena to 

serve the identified John Does with copies of the subpoena and this Order. Each ISP may serve the 

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John Does using reasonable means, including by email or written notice sent to the John Does’ 

last known addresses. 

The John Does will each have thirty (30) days from the date of service of the Rule 45 

subpoena and this Order to file any motions with the Court contesting the subpoena as well as any 

request to litigate this subpoena anonymously. No ISP may turn over a John Doe’s identifying 

information before such thirty-day period has lapsed. Further, if a John Doe or ISP files a motion 

to quash or modify the subpoena, the ISP may not turn over any information to Strike 3 until the 

Court rules on that motion. A John Doe or ISP who moves to quash or modify, or to proceed 

anonymously, must immediately notify all ISPs so that the ISPs are on notice not to release any of 

the other John Does’ identifying information until the Court rules on that motion. 

If the thirty-day period expires without any motion contesting the subpoena, the ISPs will 

have ten (10) days thereafter to produce the subpoenaed information to Strike 3. 

Each ISP must take reasonable steps to preserve the subpoenaed information pending the 

resolution of any timely filed motion to quash. Any ISP may file a motion to raise any undue 

burden caused by this preservation obligation. 

Any information ultimately disclosed to Strike 3 in response to a Rule 45 subpoena may 

be used by Strike 3 only for the purpose of protecting its rights as asserted in its Complaint. The 

information disclosed may only be used by Strike 3 in this litigation and may not be disclosed 

other than to counsel for the parties. 

IT IS SO ORDERED. 

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