Strike 3 Holdings, LLC v. JOHN DOE subscriber assigned IP address 68.189.66.122
Filing
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ORDER GRANTING 8 EX PARTE MOTION TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE. Signed by Magistrate Judge Susan van Keulen on 1/11/2018. (ofr, 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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v.
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JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 68.189.66.122,
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United States District Court
Northern District of California
Case No. 17-cv-07065-SVK
Defendant.
ORDER GRANTING EX PARTE
MOTION TO SERVE A THIRD PARTY
SUBPOENA PRIOR TO A RULE 26(F)
CONFERENCE
Re: Dkt. No. 8
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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 Spectrum, the Internet Service Provider (“ISP”) for Defendant John Doe,
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in an effort to identify Defendant prior to the conference required under Federal Rule of Civil
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Procedure 26(f). Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable without
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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 Spectrum or the subscriber assigned
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to 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 Spectrum, 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 8-2. 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 Spectrum, which operates the internet service associated with Defendant’s IP
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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 Spectrum before the Rule 26(f) conference is GRANTED on the following
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conditions:
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The subpoena shall only request the actual name and address of the subscriber to whom
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Spectrum 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.
Plaintiff may not use any information disclosed by Spectrum for any purpose other than
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protecting its rights as set forth in the Complaint.
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Spectrum 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 Spectrum.
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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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Spectrum. Spectrum shall not disclose any identifying information about defendant to
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Plaintiff prior to the return date or prior to the resolution of any motions to quash or
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modify the 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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filed motion to quash or modify the subpoena.
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United States District Court
Northern District of California
Spectrum shall preserve any subpoenaed information pending the resolution of any timely-
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If Spectrum produces information regarding the Doe Defendant to Plaintiff, Plaintiff shall
not publicly disclose that information until Defendant has an opportunity to file a motion
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with this Court to be allowed to proceed in this litigation anonymously and that motion is
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ruled on by the Court. If Defendant fails to file a motion for leave to proceed
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anonymously within 30 DAYS after his or her information is disclosed to Plaintiff, this
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limited protective order will expire. If Defendant includes identifying information in his or
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her request to proceed anonymously, the Court finds good cause to order the papers filed
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under seal until the Court has an opportunity to rule on the request. See Digital Sin, 2011
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WL 5362068, at *4. In the event Defendant’s request is placed under seal, the court will
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direct Defendant to submit a copy of the under-seal request to Plaintiff and will ensure that
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Plaintiff has time to respond.
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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 other service
provider besides Spectrum in this matter.
SO ORDERED.
Dated: January 11, 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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