Strike 3 Holdings, LLC v Doe

Filing 5

ORDER Granting Ex Parte Application For Leave To Serve A Third-Party Subpoena Prior To A Rule 26(f) Conference. Signed by Magistrate Judge Mitchell D. Dembin on 5/5/2022. (ddf).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 STRIKE 3 HOLDINGS, LLC, Plaintiff, 13 v. 14 JOHN DOE, subscriber assigned IP address 70.95.169.75 15 Defendant. 16 Case No.: 22cv0476-LL-MDD ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE [ECF No. 4] 17 18 19 Before the Court is Strike 3 Holdings, LLC’s (“Plaintiff’s”) Ex Parte 20 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) 21 Conference filed on April 29, 2022. (ECF No. 4). No Defendant has been 22 named or served. For the reasons discussed below, Plaintiff’s motion is 23 GRANTED. 24 25 I. PROCEDURAL HISTORY On April 8, 2022, Plaintiff filed a Complaint against “John Doe,” 26 allegedly a subscriber of Spectrum assigned IP address 70.95.169.75 27 (“Defendant”). (ECF No. 1). Plaintiff alleges direct copyright infringement 1 22cv0476-LL-MDD 1 against Defendant. Plaintiff asserts that it is the registered copyright holder 2 of certain copyrighted works alleged to have been infringed by Defendant. 3 Plaintiff contends Defendant used the BitTorrent file distribution network to 4 copy and distribute Plaintiff’s copyrighted works through the Internet 5 without Plaintiff’s permission. (Id.). 6 Plaintiff seeks leave to conduct early discovery to learn the identity of 7 the subscriber of the subject Internet Protocol (“IP”) address from the 8 Internet Service Provider (“ISP”) who leased the IP address to its subscriber 9 during the relevant period. Specifically, Plaintiff seeks an order permitting it 10 to serve a third-party subpoena, pursuant to Federal Rule of Civil Procedure 11 45, on Spectrum requiring the ISP to supply the name and address of its 12 subscriber to Plaintiff. II. 13 14 LEGAL STANDARD Formal discovery generally is not permitted without a court order 15 before the parties have conferred pursuant to Federal Rule of Civil Procedure 16 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts have made 17 exceptions, permitting limited discovery to ensue after filing of the complaint 18 to permit the plaintiff to learn the identifying facts necessary to permit 19 service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 20 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 21 Cir. 1980)). Requests for early or expedited discovery are granted upon a 22 showing of good cause by the moving party. See Semitool, Inc. v. Tokyo 23 Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002) (applying “the 24 conventional standard of good cause in evaluating Plaintiff’s request for 25 expedited discovery”). 26 27 “The Ninth Circuit has held that when the defendants’ identities are unknown at the time the complaint is filed, courts may grant plaintiffs leave 2 22cv0476-LL-MDD 1 to take early discovery to determine the defendants’ identities ‘unless it is 2 clear that discovery would not uncover the identities, or that the complaint 3 would be dismissed on other grounds.’” 808 Holdings, LLC v. Collective of 4 Dec. 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 2012 WL 5 12884688, at *3 (S.D. Cal. May 8, 2012) (quoting Gillespie, 629 F.2d at 642). 6 “A district court’s decision to grant discovery to determine jurisdictional facts 7 is a matter of discretion.” Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells 8 Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 9 1977)). 10 District courts apply a three-factor test when considering motions for 11 early discovery to identify Doe defendants. Id. at 578-80. First, “the plaintiff 12 should identify the missing party with sufficient specificity such that the 13 Court can determine that defendant is a real person or entity who could be 14 sued in federal court.” Id. at 578. Second, the plaintiff “should identify all 15 previous steps taken to locate the elusive defendant” to ensure that the 16 plaintiff has made a good faith effort to identify and serve process on the 17 defendant. Id. at 579. Third, the “plaintiff should establish to the Court’s 18 satisfaction that plaintiff’s suit against defendant could withstand a motion 19 to dismiss.” Id. (citing Gillespie, 629 F.2d at 642). Further, “the plaintiff 20 should file a request for discovery with the Court, along with a statement of 21 reasons justifying the specific discovery requested as well as identification of 22 a limited number of persons or entities on whom discovery process might be 23 served and for which there is a reasonable likelihood that the discovery 24 process will lead to identifying information about defendant that would make 25 service of process possible.” Id. at 580. 26 27 III. ANALYSIS Upon review of the motion and its supporting declarations, the Court 3 22cv0476-LL-MDD 1 finds Plaintiff has sustained its evidentiary burden and shown good cause to 2 subpoena records from Spectrum identifying the subscriber assigned to the 3 subject IP address at the identified times. The subpoena must be limited to 4 documents identifying the subscriber’s name and address during the relevant 5 period. That information should be sufficient for Plaintiff to be able to 6 identify and serve Defendant. If Plaintiff is unable to identify and serve 7 Defendant after receiving a response to the subpoena, Plaintiff may seek 8 leave from the Court to pursue additional discovery. 9 The Court must also consider the requirements of the Cable Privacy 10 Act. The Act generally prohibits a cable operator from disclosing “personally 11 identifiable information concerning any subscriber without the prior written 12 or electronic consent of the subscriber concerned[.]” 47 U.S.C. § 551(c)(1). A 13 cable operator, however, may disclose the information if the disclosure is 14 made pursuant to a court order and the cable operator notifies the subscriber 15 of the order. 47 U.S.C. § 551(c)(2)(B). The ISP that Plaintiff intends to 16 subpoena in this case is a cable operator within the meaning of the Act. IV. 17 18 CONCLUSION Based on the foregoing, the Court GRANTS Plaintiff’s Ex Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) 20 Conference [ECF No. 4] as follows: 21 1. Plaintiff may serve a subpoena, pursuant to and compliant with 22 the procedures of Federal Rule of Civil Procedure 45, on the ISP, Spectrum, 23 seeking only the name and address of the subscriber assigned to the subject 24 IP address for the relevant time period. 25 2. The subpoena must provide at least forty-five (45) calendar days 26 from service to production. The ISP may seek to quash or modify the 27 subpoena as provided at Rule 45(d)(3). 4 22cv0476-LL-MDD 3. 1 The ISP must notify its subscriber, no later than fourteen (14) 2 calendar days after service of the subpoena, that his or her identity has been 3 subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed 4 will have thirty (30) calendar days from the date of the notice to seek a 5 protective order, to move to quash or modify the subpoena, or file any other 6 responsive pleading. 4. 7 Plaintiff must serve a copy of this Order with the subpoena upon 8 the ISP. The ISP, in turn, must provide a copy of this Order along with the 9 required notice to the subscriber whose identity is sought pursuant to this 10 Order. 11 5. 12 IT IS SO ORDERED. 13 No other discovery is authorized at this time. Dated: May 5, 2022 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5 22cv0476-LL-MDD

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