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

Filing 9

ORDER by Judge Thomas S. Hixson granting 8 Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. (tshlc1, COURT STAFF) (Filed on 11/13/2023)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Plaintiff, 8 9 10 11 v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS, Defendant. United States District Court Northern District of California Case No. 23-cv-05495-TSH ORDER GRANTING EX-PARTE MOTION FOR LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE Re: Dkt. No. 8 12 13 THIS CAUSE came before the Court upon Plaintiff’s Ex-Parte Application for Leave to 14 Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference, and the Court being duly advised 15 does FIND, ORDER AND ADJUDGE: 16 1. Plaintiff has established “good cause” exists to serve a third-party subpoena on the 17 internet service provider, AT&T Internet (the “ISP”). See UMG Recording, Inc. v. Doe, 2008 WL 18 4104214, *4 (N.D. Cal. Sep. 3, 2008) (collecting cases); Strike 3 Holdings, LLC v. Doe, 2018 WL 19 357287, at *2 (N.D. Cal. Jan. 10, 2018). 20 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to provide the 21 true name and address of the Defendant to whom the ISP assigned an IP address as set forth on 22 Exhibit A to the Complaint. Plaintiff shall attach a copy of this Order to the subpoena; 23 24 3. Plaintiff may also serve a Rule 45 subpoena in the same manner on any service provider that is identified in response to a subpoena as a provider of Internet services to the Defendant; 25 4. If the ISP qualifies as a “cable operator” under 47 U.S.C. § 522(5), which defines the 26 term “cable operator” as “any person or group of persons (A) who provides cable service over a 27 cable system and directly or through one or more affiliates owns a significant interest in such cable 28 system, or (B) who otherwise controls or is responsible for, through any arrangement, the 1 management and operation of such a cable system,” the ISP shall comply with 47 U.S.C. § 2 551(c)(2)(B), which provides that “[a] cable operator may disclose such [personal identifying] 3 information if the disclosure is . . . made pursuant to a court order authorizing such disclosure, if 4 the subscriber is notified of such order by the person to whom the order is directed,” by sending a 5 copy of this Order to the Defendant; and 6 7 served on the ISP for the purpose of protecting and enforcing Plaintiff’s rights as set forth in its 8 Complaint. 9 United States District Court Northern District of California 5. Plaintiff may only use the information disclosed in response to a Rule 45 subpoena 6. The ISP shall serve a copy of the subpoena and a copy of this order on the 10 subscriber within 30 days of the date of service on the ISP. The ISP may serve the subscribers 11 using any reasonable means, including written notice sent to the subscriber’s last known address, 12 transmitted either by first-class mail or via overnight service. 13 7. Each subscriber and the ISP shall have 30 days from the date of service upon him, her, 14 or it to file any motions in this court contesting the subpoena (including a motion to quash or 15 modify the subpoena). If the 30-day period lapses without the subscriber contesting the subpoena, 16 the ISP shall have 10 days to produce to Plaintiff the information responsive to the subpoena with 17 respect to that subscriber. 18 8. The ISP shall preserve all subpoenaed information pending the ISP’s delivering such 19 information to Plaintiff or the final resolution of a timely filed motion to quash the subpoena with 20 respect to such information. 21 22 23 9. Any name or other personal identifying information of any current or proposed defendant shall be filed UNDER SEAL in all filings. IT IS SO ORDERED. 24 25 Dated: November 13, 2023 26 THOMAS S. HIXSON United States Magistrate Judge 27 28 2

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