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

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Plaintiff, 8 v. 9 10 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS, 11 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 12 Before the Court is Plaintiff Strike 3 Holdings, LLC’s ex parte motion for leave to serve a 13 14 third party subpoena on AT&T Inc. (“AT&T”), the Internet Service Provider (“ISP”) for 15 Defendant John Doe, in an effort to identify Defendant prior to the conference required under 16 Federal Rule of Civil Procedure 26(f). Pursuant to Civil Local Rule 7-1(b), the Court finds this 17 matter suitable for decision without a hearing. For the reasons discussed below, the Court GRANTS Plaintiff’s motion on the terms and 18 19 conditions outlined in this order, without prejudice to any motions to quash or modify the 20 subpoena that may be filed by any interested party, including AT&T or the subscriber assigned to 21 the Internet Protocol (“IP”) Address identified in the caption above. 22 I. Background This is a copyright infringement action brought by the owner of copyrights on numerous 23 24 adult-content motion pictures. Plaintiff alleges that Defendant used the BitTorrent protocol to 25 download a number of Plaintiff’s copyrighted motion pictures and distribute them to others. ECF 26 1. Defendant is known to Plaintiff only by his or her IP Address. Id. 27 //// 28 //// 1 II. Legal Standard 2 With limited exceptions, unless the parties agree or the Court orders otherwise, neither 3 party may seek discovery from any source before the parties have conferred to discuss the case 4 and a discovery plan, as required under Federal Rule of Civil Procedure 26(f). Fed. R. Civ. Proc. 5 26(d)(1), (f). 6 Courts in the Ninth Circuit generally employ a “good cause” standard in deciding whether 7 to authorize discovery before the Rule 26(f) conference. See Digital Sin, Inc. v. Does 1-5698, No. 8 C 11-04397 LB, 2011 WL 5362068, at *1 (N.D. Cal. Nov. 4, 2011) (collecting cases). In cases 9 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, 11 United States District Court Northern District of California 10 or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 12 642 (9th Cir. 1980). In numerous cases, courts in this district have considered requests to permit early 13 14 discovery into the identity of unknown defendants in the context of tortious acts committed online 15 by persons acting anonymously or pseudonymously. In such cases, “the need to provide injured 16 parties with an [sic] forum in which they may seek redress for grievances” must be balanced 17 against “the legitimate and valuable right to participate in online forums anonymously or 18 pseudonymously.” Columbia Ins. Co. v., 185 F.R.D. 573, 578 (N.D. Cal. 1999). 19 To strike this balance, courts consider the following factors: (1) whether the plaintiff has 20 identified the missing party with sufficient specificity such that the Court can determine that 21 defendant is a real person or entity who could be sued in federal court; (2) whether the plaintiff has 22 identified all previous steps taken to locate the elusive defendant; (3) whether the plaintiff has 23 shown that its suit could withstand a motion to dismiss; and (4) whether the plaintiff has filed a 24 request for discovery with the Court, along with a statement of reasons justifying the discovery 25 requested as well as identification of a limited number of persons or entities on whom discovery 26 might be served and for which there is a reasonable likelihood that the discovery process will lead 27 to identifying information about the defendant that would enable service of process. Id. at 578-80. 28 //// 2 1 III. Discussion Plaintiff has shown that the relevant factors establish good cause to permit it to serve a 2 subpoena on AT&T, the ISP for the person with the IP Address identified in the caption above, 4 before the Rule 26(f) conference. Plaintiff has identified the steps it took to locate and identify 5 Defendant, which resulted in location of an IP Address linked to a physical address in this District 6 that is associated with the allegedly infringing activity of which Defendant is accused. ECF 1; 7 ECF 7-2. Such efforts have been held sufficient to satisfy the first two Columbia factors. See, 8 e.g., Digital Sin, 2011 WL 5362068, at *2. Next, Plaintiff has pled the essential elements to state 9 a claim for copyright infringement. Finally, Plaintiff has shown that the proposed subpoena is 10 likely to reveal the identity of the alleged infringer. It appears that Plaintiff has no means other 11 United States District Court Northern District of California 3 than subpoenaing AT&T, which operates the U-Verse internet service associated with Defendant’s 12 IP Address, to discovery the true owner of the IP Address. 13 IV. Conclusion For the reasons discussed above, Plaintiff’s ex parte motion for leave to serve a third party 14 15 subpoena on AT&T before the Rule 26(f) conference is GRANTED on the following conditions: 16 17  The subpoena shall only request the actual name and address of the subscriber to whom 18 AT&T assigned the above-captioned IP address during the time frame from 14 DAYS 19 BEFORE the date of the first alleged infringing act to 14 DAYS AFTER the date of the 20 last alleged infringing act as set forth in Exhibit A to the Complaint. 21 22  Plaintiff shall attach a copy of this order to the subpoena.  Plaintiff may not use any information disclosed by AT&T for any purpose other than 23 protecting its rights as set forth in the Complaint. 24 25 26  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. 27 28 3  1 The return date on the subpoena shall be no less than 45 DAYS from the date of service on 2 AT&T. AT&T shall not disclose any identifying information about defendant to Plaintiff 3 prior to the return date or prior to the resolution of any motions to quash or modify the 4 subpoena. 5  Defendant John Doe will have 30 DAYS from the date of service upon him or her to file 6 any motions contesting the subpoena (including a motion to quash or modify the subpoena) 7 with the Court for the district where compliance with the subpoena is required. 8  9 filed motion to quash or modify the subpoena. 10  11 United States District Court Northern District of California AT&T shall preserve any subpoenaed information pending the resolution of any timely- 12 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 13 this Court to be allowed to proceed in this litigation anonymously and that motion is ruled 14 on by the Court. If Defendant fails to file a motion for leave to proceed anonymously 15 within 30 DAYS after his or her information is disclosed to Plaintiff, this limited protective 16 17 order will expire. If Defendant includes identifying information in his or her request to 18 proceed anonymously, the Court finds good cause to order the papers filed under seal until 19 the Court has an opportunity to rule on the request. See Digital Sin, 2011 WL 5362068, at 20 *4. In the event Defendant’s request is placed under seal, the court will direct Defendant 21 to submit a copy of the under-seal request to Plaintiff and will ensure that Plaintiff has time 22 to respond. 23  24 provider that is identified in response to a subpoena as a provider of Internet services to 25 26 27 In its proposed order, Plaintiff also sought leave to serve subpoenas on “any service //// //// 28 4 1 2 3 4 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 5 6 SUSAN VAN KEULEN United States Magistrate Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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