Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 67.169.56.226

Filing 9

ORDER DENYING EX PARTE APPLICATION FOR LEAVE TO SERVE EARLY DISCOVERY ON NON-PARTY by Magistrate Judge Elizabeth D. Laporte denying 8 Ex Parte Application.(tlS, COURT STAFF) (Filed on 1/11/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STRIKE 3 HOLDINGS, LLC,
Plaintiff,

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United States District Court
Northern District of California

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Case No.17-cv-07007-EDL
ORDER DENYING EX PARTE
APPLICATION FOR LEAVE TO
SERVE EARLY DISCOVERY ON NONPARTY

v.
JOHN DOE,
Defendant.

Re: Dkt. No. 8

Currently pending before the Court is Plaintiff’s ex parte application for leave to serve

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early discovery on a non-party. For the following reasons, the Court DENIES the application with

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leave to file an amended application.

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Plaintiff is the owner of adult-content movies that it distributes through its websites.

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Compl., ¶¶ 2-3. Plaintiff alleges that Defendant has used the BitTorrent protocol to download and

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distribute Plaintiff’s movies to others in violation of Plaintiff’s copyrights in the material. Compl.,

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¶ 4. According to the complaint, Defendant has infringed Plaintiff’s copyrights in 75 movies over

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a prolonged period of time. Id. Defendant is known to Plaintiff only by his or her IP address

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67.169.56.226 that is alleged maintained by Comcast Cable Communications, LLC (“Comcast”),

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which is an Internet service provider (“ISP”). Compl., ¶ 5.

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In order to uncover Defendant’s identity and effect service, Plaintiff seeks leave from the

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Court to serve a subpoena on Comcast. Federal Rule of Civil Procedure 26(d)(1) requires a court

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order for discovery if it is requested prior to a Rule 26(f) conference between the parties. Fed. R.

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Civ. P. 26(d)(1). Here, the Rule 26(f) conference has not occurred and, therefore, a court order for

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the requested third-party subpoena is required.

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Generally, a “good cause” standard applies to determine whether to permit such early
discovery. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).

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“Good cause may be found where the need for expedited discovery, in consideration of the

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administration of justice, outweighs the prejudice of the responding party.” Id. In cases involving

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unknown defendants, “plaintiff should be given an opportunity through discovery to identify the

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unknown defendants, unless it is clear that discovery would not uncover the identities, or that the

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complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980). To determine whether there is “good cause” to permit expedited discovery to identify

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doe defendants, courts consider whether:

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United States District Court
Northern District of California

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(1) the plaintiff can 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; (2) the plaintiff
has identified all previous steps taken to locate the elusive
defendant; (3) the plaintiff’s suit against defendant could withstand a
motion to dismiss; and (4) the plaintiff has demonstrated that there is
a reasonable likelihood of being able to identify the defendant
through discovery such that service of process would be possible.
OpenMind Solutions, Inc. v. Does 1–39, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (citing

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Columbia Ins. Co.v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999)).
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While Plaintiff’s application and accompanying declarations have sufficiently established

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good cause under the first, second, and third prongs of the Columbia test, Plaintiff has failed to
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provide evidence that is sufficient to demonstrate that the proposed subpoena to Comcast is likely
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to reveal the identity of Defendant under the fourth prong of the test. Plaintiff’s application asserts

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that the IP address is maintained by Comcast, but it does not provide any evidence supporting that
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assertion. Without proper support, the Court is unable to verify that Comcast is likely to have the
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information sought. For this reason, Plaintiff’s application for early discovery is denied with leave

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to file an amended application that addresses this issue.
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In addition, the Court notes that it has reviewed and granted similar applications for early
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discovery that have been filed by Plaintiff in other copyright infringement cases. In those cases,
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the Court has granted the applications, but, in doing so, substantially modified Plaintiff’s proposed

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order to ensure that it included provisions that adequately specified the information it was
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permitted to obtain from the ISP, protected the ISP subscriber’s anonymity in the event of

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misidentification, and gave both the ISP and the ISP subscriber notice about their rights to
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challenge the subpoena. See, e.g., Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP

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Address 108.222.65.153, 3:17-cv-06659-EDL, Dkt. No. 10. Although Plaintiff is certainly aware

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of these necessary provisions by this point, it nonetheless filed a seriously deficient proposed order

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with this application that failed to include any of the provisions that the Court has previously

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required. In the future, the Court will not grant any additional applications by Plaintiff for early

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discovery unless these provisions are included. If Plaintiff files an amended application, it is

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directed to also file an amended proposed order.

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IT IS SO ORDERED.
Dated: January 11, 2018

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United States District Court
Northern District of California

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ELIZABETH D. LAPORTE
United States Magistrate Judge

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