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

Filing 10

ORDER by Magistrate Judge Virginia K. DeMarchi granting 9 Plaintiff's Ex Parte Motion for Leave to Serve Subpoena. (vkdlc2, COURT STAFF) (Filed on 11/18/2022)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 STRIKE 3 HOLDINGS, LLC, 8 Plaintiff, 9 v. 10 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS, 11 United States District Court Northern District of California Case No. 22-cv-06324-VKD 12 ORDER GRANTING PLAINTIFF’S EX PARTE MOTION TO FOR LEAVE TO SERVE SUBPOENA Re: Dkt. No. 9 Defendant. 13 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks leave to serve a third-party subpoena on 14 15 Comcast Cable (“Comcast”) prior to a Rule 26(f) conference. Strike 3 has established that good cause exists for it to serve a third-party subpoena on 16 17 Comcast, the above-referenced subscriber’s internet service provider.1 See Gillespie v. Civiletti, 18 629 F.2d 637, 642 (9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA, 2008 WL 19 4104214, at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can identify the 20 defendant with sufficient specificity such that the Court can determine that the defendant is a real 21 person or entity who could be sued in federal court, (2) it has identified previous steps taken to 22 locate the elusive defendant, (3) its action against the defendant could withstand a motion to 23 dismiss, and (4) there is a reasonable likelihood of being able to identify the defendant through 24 discovery such that service of process would be possible. See Columbia Ins. Co. v. 25 26 27 28 1 There is a discrepancy in the declaration submitted by Mr. Patrick Paige, who attests that he read Mr. Williamson’s declaration. Mr. Paige’s declaration, however, predates Mr. Williamson’s declaration by several days. Compare Dkt. No. 9-1 (Paige Declaration at ECF 22 & ¶ 27) with Dkt. No. 9-1 at ECF 15). As Mr. Williamson’s declaration appears to be virtually identical to those submitted in support of other Strike 3 subpoena applications that this Court has granted, this discrepancy does not preclude the relief sought in the present application. United States District Court Northern District of California 1, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). Additionally, Strike 3’s application 2 indicates that Strike 3 has satisfied the registration requirements under 17 U.S.C. § 411(a) for 3 commencing a copyright infringement lawsuit. Fourth Estate Public Benefit Corp. v. Wall- 4, LLC, 139 S. Ct. 881 (2019). Once Strike 3 learns the defendant’s identity, it cannot 5 rely on a bare allegation that a defendant is the registered subscriber of an internet protocol 6 address associated with infringing activity to state a plausible claim for direct or contributory 7 copyright infringement. Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018). 8 However, at this stage of these proceedings, and upon the record presented, Strike 3 properly may 9 serve discovery to ascertain the defendant’s identity. See generally Glacier Films (USA), Inc. v. 10 Turchin, 896 F.3d 1033, 1036, 1038 (9th Cir. 2018) (observing that the district court’s case 11 management order permitting “limited discovery from an Internet Service Provider to establish a 12 potential infringer’s identity” was “a sensible way to manage its dockets . . . .”). 13 Accordingly, the Court grants Strike 3’s application and orders as follows: 14 1. Strike 3 may serve a Rule 45 subpoena on Comcast commanding Comcast to 15 provide Strike 3 with the true name and address of the subscriber to whom Comcast assigned IP 16 address Strike 3 shall attach a copy of this order to any such subpoena. 2. 17 Comcast shall serve a copy of the subpoena and a copy of this order on the 18 subscriber within 30 days of the date of service of the subpoena on Comcast. Comcast may serve 19 the subscriber using any reasonable means, including written notice sent to the subscriber’s last 20 known address, transmitted either by first-class mail or via overnight service. 3. 21 Strike 3 may only use the information disclosed in response to a Rule 45 subpoena 22 served on Comcast for the purpose of protecting and enforcing Strike 3’s rights as set forth in its 23 complaint. 24 4. 25 If Comcast produces information regarding the identity of the subscriber to Strike 3, Strike 26 /// 27 /// 28 /// Comcast may object to the Rule 45 subpoena, and may also seek a protective order. 2 1 2 3 3 shall not publicly disclose that information absent consent of the subscriber or leave of court. IT IS SO ORDERED. Dated: November 18, 2022 4 5 VIRGINIA K. DEMARCHI United States Magistrate Judge 6 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 3

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