Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 70.95.4.17

Filing 5

Order Granting Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (ECF No. #4 ). Signed by Magistrate Judge Mitchell D. Dembin on 5/5/22. (jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN 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 70.95.4.17

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Defendant.

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Case No.: 22cv0478-BAS-MDD
ORDER GRANTING EX PARTE
APPLICATION FOR LEAVE TO
SERVE A THIRD-PARTY
SUBPOENA PRIOR TO A RULE
26(f) CONFERENCE
[ECF No. 4]

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Before the Court is Strike 3 Holdings, LLC’s (“Plaintiff’s”) Ex Parte

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Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f)

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Conference filed on April 29, 2022. (ECF No. 4). No Defendant has been

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named or served. For the reasons discussed below, Plaintiff’s motion is

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GRANTED.

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I.

PROCEDURAL HISTORY

On April 8, 2022, Plaintiff filed a Complaint against “John Doe,”

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allegedly a subscriber of Spectrum assigned IP address 70.95.4.17

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(“Defendant”). (ECF No. 1). Plaintiff alleges direct copyright infringement
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22cv0478-BAS-MDD

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against Defendant. Plaintiff asserts that it is the registered copyright holder

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of certain copyrighted works alleged to have been infringed by Defendant.

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Plaintiff contends Defendant used the BitTorrent file distribution network to

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copy and distribute Plaintiff’s copyrighted works through the Internet

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without Plaintiff’s permission. (Id.).

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Plaintiff seeks leave to conduct early discovery to learn the identity of

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the subscriber of the subject Internet Protocol (“IP”) address from the

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Internet Service Provider (“ISP”) who leased the IP address to its subscriber

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during the relevant period. Specifically, Plaintiff seeks an order permitting it

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to serve a third-party subpoena, pursuant to Federal Rule of Civil Procedure

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45, on Spectrum requiring the ISP to supply the name and address of its

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subscriber to Plaintiff.
II.

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LEGAL STANDARD

Formal discovery generally is not permitted without a court order

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before the parties have conferred pursuant to Federal Rule of Civil Procedure

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26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts have made

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exceptions, permitting limited discovery to ensue after filing of the complaint

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to permit the plaintiff to learn the identifying facts necessary to permit

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service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D.

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573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980)). Requests for early or expedited discovery are granted upon a

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showing of good cause by the moving party. See Semitool, Inc. v. Tokyo

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Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002) (applying “the

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conventional standard of good cause in evaluating Plaintiff’s request for

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expedited discovery”).

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“The Ninth Circuit has held that when the defendants’ identities are
unknown at the time the complaint is filed, courts may grant plaintiffs leave
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to take early discovery to determine the defendants’ identities ‘unless it is

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clear that discovery would not uncover the identities, or that the complaint

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would be dismissed on other grounds.’” 808 Holdings, LLC v. Collective of

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Dec. 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 2012 WL

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12884688, at *3 (S.D. Cal. May 8, 2012) (quoting Gillespie, 629 F.2d at 642).

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“A district court’s decision to grant discovery to determine jurisdictional facts

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is a matter of discretion.” Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells

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Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir.

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1977)).

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District courts apply a three-factor test when considering motions for

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early discovery to identify Doe defendants. Id. at 578-80. First, “the plaintiff

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should identify the missing party with sufficient specificity such that the

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Court can determine that defendant is a real person or entity who could be

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sued in federal court.” Id. at 578. Second, the plaintiff “should identify all

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previous steps taken to locate the elusive defendant” to ensure that the

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plaintiff has made a good faith effort to identify and serve process on the

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defendant. Id. at 579. Third, the “plaintiff should establish to the Court’s

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satisfaction that plaintiff’s suit against defendant could withstand a motion

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to dismiss.” Id. (citing Gillespie, 629 F.2d at 642). Further, “the plaintiff

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should file a request for discovery with the Court, along with a statement of

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reasons justifying the specific discovery requested as well as identification of

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a limited number of persons or entities on whom discovery process might be

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served and for which there is a reasonable likelihood that the discovery

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process will lead to identifying information about defendant that would make

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service of process possible.” Id. at 580.

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III.

ANALYSIS

Upon review of the motion and its supporting declarations, the Court
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22cv0478-BAS-MDD

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finds Plaintiff has sustained its evidentiary burden and shown good cause to

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subpoena records from Spectrum identifying the subscriber assigned to the

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subject IP address at the identified times. The subpoena must be limited to

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documents identifying the subscriber’s name and address during the relevant

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period. That information should be sufficient for Plaintiff to be able to

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identify and serve Defendant. If Plaintiff is unable to identify and serve

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Defendant after receiving a response to the subpoena, Plaintiff may seek

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leave from the Court to pursue additional discovery.

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The Court must also consider the requirements of the Cable Privacy

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Act. The Act generally prohibits a cable operator from disclosing “personally

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identifiable information concerning any subscriber without the prior written

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or electronic consent of the subscriber concerned[.]” 47 U.S.C. § 551(c)(1). A

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cable operator, however, may disclose the information if the disclosure is

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made pursuant to a court order and the cable operator notifies the subscriber

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of the order. 47 U.S.C. § 551(c)(2)(B). The ISP that Plaintiff intends to

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subpoena in this case is a cable operator within the meaning of the Act.
IV.

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CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiff’s Ex Parte

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Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f)

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Conference [ECF No. 4] as follows:

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1.

Plaintiff may serve a subpoena, pursuant to and compliant with

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the procedures of Federal Rule of Civil Procedure 45, on the ISP, Spectrum,

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seeking only the name and address of the subscriber assigned to the subject

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IP address for the relevant time period.

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2.

The subpoena must provide at least forty-five (45) calendar days

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from service to production. The ISP may seek to quash or modify the

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subpoena as provided at Rule 45(d)(3).
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22cv0478-BAS-MDD

3.

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The ISP must notify its subscriber, no later than fourteen (14)

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calendar days after service of the subpoena, that his or her identity has been

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subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed

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will have thirty (30) calendar days from the date of the notice to seek a

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protective order, to move to quash or modify the subpoena, or file any other

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responsive pleading.
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Plaintiff must serve a copy of this Order with the subpoena upon

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the ISP. The ISP, in turn, must provide a copy of this Order along with the

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required notice to the subscriber whose identity is sought pursuant to this

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Order.

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5.

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IT IS SO ORDERED.

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No other discovery is authorized at this time.

Dated: May 5, 2022

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