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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 

71.136.190.89

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CIVIL NO. 4:22-CV-459-SDJ

LEAD CASE

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

72.128.20.140

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CIVIL NO. 4:23-CV-1128-SDJ

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

47.190.62.113

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CIVIL NO. 4:24-CV-55-SDJ

JOHN DOE, SUBSCRIBER 

ASSIGNED IP ADDRESS 

108.247.138.56

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CIVIL NO. 4:24-CV-56-SDJ

MEMORANDUM OPINION AND ORDER

The Court previously granted Plaintiff Strike 3 Holdings, LLC leave to serve 

third-party subpoenas to various John Doe Defendants’ internet service providers 

(ISPs) in order to ascertain the identities of the John Does who, as of now, are 

identifiable only by their IP addresses. Now before the Court are three motions filed 

in cases now consolidated with the lead case, No. 4:22-CV-459-SDJ, pertaining to 

member cases 4:23-CV-1128-SDJ, (Dkt. #4), 4:24-CV-55-SDJ, (Dkt. #4), and 4:24-CV56-SDJ, (Dkt. #4). Each motion seeks the same basic relief as Strike 3’s prior motions 

for leave: permission to issue to the newly added John Doe Defendants’ ISP non-party 

subpoenas requesting the John Does’ identifying information. After reviewing the 

motions and the applicable law, the Court GRANTS the motions.

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I. BACKGROUND

Strike 3 alleges that it owns the copyright for a number of adult films produced 

by Strike 3 and distributed via its streaming websites and DVDs. Strike 3 also alleges 

that each of the consolidated John Does has used the BitTorrent protocol1 to download 

Strike 3’s films and redistribute those films to others without Strike 3’s permission, 

thereby infringing Strike 3’s copyrights. Strike 3 further alleges that, using software 

that it developed, it has scanned and detected digital media files found online that 

consist of infringing copies of Strike 3’s copyrighted films and, according to Strike 3, 

those copyright-infringing digital-media files were uploaded by the various John Does 

as identified by their IP addresses.

Now 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 to the John Does’ ISPs non-party subpoenas requesting the John 

Does’ identifying information.

II. LEGAL STANDARDS

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 

preempted 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 

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).

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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 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 

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(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)).

III. DISCUSSION

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.

A. 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)). 

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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., (No. 4:22-CV-155, Dkt. #8-1). 

Thus, Strike 3 has established a prima facie copyright-infringement claim, and this 

factor weighs in favor of granting its motions for leave to serve third-party 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.

B. 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 “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”).

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C. 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.

E. 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, 335–36 (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, Defendants’ privacy interests will be adequately protected. 

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Therefore, the privacy-interests factor also favors granting Strike 3’s motion as to the 

ISP subpoenas.

* * *

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).

IV. SCOPE OF SUBPOENAS

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 Defendants’ 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 

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

that the 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.

V. CONCLUSION AND PROTECTIVE ORDER

For all these reasons, the Court GRANTS Strike 3’s motions for leave to serve 

third-party subpoenas. 4:23-CV-1128-SDJ, (Dkt. #4), 4:24-CV-55-SDJ, (Dkt. #4), and 

4:24-CV-56-SDJ, (Dkt. #4).

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:

1. Strike 3 may immediately serve Rule 45 subpoenas to Spectrum, AT&T 

Internet, and Frontier Communications (“ISPs”), which will be limited 

to the name, IP address, and physical address of the John Doe 

Defendants currently identifiable only by IP address. A copy of this 

Order must be attached to each subpoena.

2. Each ISP will have twenty days from the date of service of the Rule 45 

subpoena to serve the identified Defendants with copies of the subpoena 

and this Order. Each ISP may serve the Defendants using reasonable 

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means, including by email or written notice sent to the Defendants’ last 

known addresses.

3. The Defendants will each have thirty 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 Defendant’s identifying 

information before such thirty-day period has lapsed. Further, if a 

Defendant 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 Defendant 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 Defendants’ identifying 

information until the Court rules on that motion.

4. If the thirty-day period expires without any motion contesting the 

subpoena, the ISPs will have ten days thereafter to produce the 

subpoenaed information to Strike 3.

5. 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 

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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.

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