Strike 3 Holdings, LLC v. JOHN DOE subscriber assigned IP address 99.60.57.116

Filing 9

ORDER GRANTING 7 EX PARTE MOTION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE. Signed by Magistrate Judge Susan van Keulen on 1/12/2018. (ofr, COURT STAFF) (Filed on 1/12/2018)

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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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v.

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JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 99.60.57.116,

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United States District Court
Northern District of California

Case No. 17-cv-06999-BLF (SVK)

Defendant.

ORDER GRANTING EX PARTE
MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR TO
A RULE 26(F) CONFERENCE
Re: Dkt. No. 7

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Before the Court is Plaintiff Strike 3 Holdings, LLC’s ex parte motion for leave to serve a

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third party subpoena on AT&T Inc. (“AT&T”), the Internet Service Provider (“ISP”) for

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Defendant John Doe, in an effort to identify Defendant prior to the conference required under

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Federal Rule of Civil Procedure 26(f). Pursuant to Civil Local Rule 7-1(b), the Court finds this

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matter suitable for decision without a hearing.
For the reasons discussed below, the Court GRANTS Plaintiff’s motion on the terms and

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conditions outlined in this order, without prejudice to any motions to quash or modify the

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subpoena that may be filed by any interested party, including AT&T or the subscriber assigned to

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the Internet Protocol (“IP”) Address identified in the caption above.

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I.

Background
This is a copyright infringement action brought by the owner of copyrights on numerous

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adult-content motion pictures. Plaintiff alleges that Defendant used the BitTorrent protocol to

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download a number of Plaintiff’s copyrighted motion pictures and distribute them to others. ECF

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1. Defendant is known to Plaintiff only by his or her IP Address. Id.

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II.

Legal Standard

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With limited exceptions, unless the parties agree or the Court orders otherwise, neither

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party may seek discovery from any source before the parties have conferred to discuss the case

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and a discovery plan, as required under Federal Rule of Civil Procedure 26(f). Fed. R. Civ. Proc.

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26(d)(1), (f).

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Courts in the Ninth Circuit generally employ a “good cause” standard in deciding whether

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to authorize discovery before the Rule 26(f) conference. See Digital Sin, Inc. v. Does 1-5698, No.

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C 11-04397 LB, 2011 WL 5362068, at *1 (N.D. Cal. Nov. 4, 2011) (collecting cases). In cases

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involving unknown defendants, “plaintiff should be given an opportunity through discovery to
identify the unknown defendants, unless it is clear that discovery would not uncover the identities,

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United States District Court
Northern District of California

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or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637,

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642 (9th Cir. 1980).
In numerous cases, courts in this district have considered requests to permit early

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discovery into the identity of unknown defendants in the context of tortious acts committed online

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by persons acting anonymously or pseudonymously. In such cases, “the need to provide injured

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parties with an [sic] forum in which they may seek redress for grievances” must be balanced

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against “the legitimate and valuable right to participate in online forums anonymously or

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pseudonymously.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999).

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To strike this balance, courts consider the following factors: (1) whether the plaintiff has

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identified the missing party with sufficient specificity such that the Court can determine that

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defendant is a real person or entity who could be sued in federal court; (2) whether the plaintiff has

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identified all previous steps taken to locate the elusive defendant; (3) whether the plaintiff has

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shown that its suit could withstand a motion to dismiss; and (4) whether the plaintiff has filed a

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request for discovery with the Court, along with a statement of reasons justifying the discovery

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requested as well as identification of a limited number of persons or entities on whom discovery

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might be served and for which there is a reasonable likelihood that the discovery process will lead

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to identifying information about the defendant that would enable service of process. Id. at 578-80.

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III.

Discussion
Plaintiff has shown that the relevant factors establish good cause to permit it to serve a

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subpoena on AT&T, the ISP for the person with the IP Address identified in the caption above,

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before the Rule 26(f) conference. Plaintiff has identified the steps it took to locate and identify

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Defendant, which resulted in location of an IP Address linked to a physical address in this District

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that is associated with the allegedly infringing activity of which Defendant is accused. ECF 1;

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ECF 7-2. Such efforts have been held sufficient to satisfy the first two Columbia factors. See,

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e.g., Digital Sin, 2011 WL 5362068, at *2. Next, Plaintiff has pled the essential elements to state

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a claim for copyright infringement. Finally, Plaintiff has shown that the proposed subpoena is

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likely to reveal the identity of the alleged infringer. It appears that Plaintiff has no means other

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United States District Court
Northern District of California

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than subpoenaing AT&T, which operates the U-Verse internet service associated with Defendant’s

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IP Address, to discovery the true owner of the IP Address.

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IV.

Conclusion
For the reasons discussed above, Plaintiff’s ex parte motion for leave to serve a third party

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subpoena on AT&T before the Rule 26(f) conference is GRANTED on the following conditions:

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The subpoena shall only request the actual name and address of the subscriber to whom

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AT&T assigned the above-captioned IP address during the time frame from 14 DAYS

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BEFORE the date of the first alleged infringing act to 14 DAYS AFTER the date of the

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last alleged infringing act as set forth in Exhibit A to the Complaint.

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Plaintiff shall attach a copy of this order to the subpoena.

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Plaintiff may not use any information disclosed by AT&T for any purpose other than

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protecting its rights as set forth in the Complaint.

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AT&T shall, in turn, serve a copy of the subpoena and a copy of this order on the
subscriber within 14 DAYS of the date of service on AT&T.

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The return date on the subpoena shall be no less than 45 DAYS from the date of service on

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AT&T. AT&T shall not disclose any identifying information about defendant to Plaintiff

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prior to the return date or prior to the resolution of any motions to quash or modify the

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subpoena.

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

Defendant John Doe will have 30 DAYS from the date of service upon him or her to file

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any motions contesting the subpoena (including a motion to quash or modify the subpoena)
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with the Court for the district where compliance with the subpoena is required.

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

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filed motion to quash or modify the subpoena.

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

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United States District Court
Northern District of California

AT&T shall preserve any subpoenaed information pending the resolution of any timely-

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If AT&T produces information regarding the Doe Defendant to Plaintiff, Plaintiff shall not
publicly disclose that information until Defendant has an opportunity to file a motion with

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this Court to be allowed to proceed in this litigation anonymously and that motion is ruled

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on by the Court. If Defendant fails to file a motion for leave to proceed anonymously

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within 30 DAYS after his or her information is disclosed to Plaintiff, this limited protective

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order will expire. If Defendant includes identifying information in his or her request to

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proceed anonymously, the Court finds good cause to order the papers filed under seal until

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the Court has an opportunity to rule on the request. See Digital Sin, 2011 WL 5362068, at

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*4. In the event Defendant’s request is placed under seal, the court will direct Defendant

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to submit a copy of the under-seal request to Plaintiff and will ensure that Plaintiff has time
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to respond.

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

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provider that is identified in response to a subpoena as a provider of Internet services to

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In its proposed order, Plaintiff also sought leave to serve subpoenas on “any service

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one of the Defendants.” Plaintiff must seek leave to serve subpoenas on any service
provider other than AT&T in this matter.
SO ORDERED.
Dated: January 12, 2018

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SUSAN VAN KEULEN
United States Magistrate Judge

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United States District Court
Northern District of California

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