Strike 3 Holdings, LLC v. Doe

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 25-cv-1650-H-DDL 12 Plaintiff, ORDER GRANTING EX PARTE 13 v. APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE subscriber assigned IP SUBPOENA PRIOR TO A RULE address 104.185.188.253, 15 26(f) CONFERENCE Defendant. 16 [Dkt. No. 4] 17 18 Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Plaintiff”) Ex Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) 20 Conference. Dkt. No. 4. For the reasons stated below, Plaintiff’s application is 21 GRANTED. 22 I 23 BACKGROUND 24 On June 27, 2025, Plaintiff filed a Complaint against Defendant John Doe 25 subscriber assigned IP address 104.185.188.253 (“Defendant”), asserting a single 26 cause of action for direct copyright infringement. See Dkt. No. 1. Plaintiff alleges 27 it is the owner of certain adult-content films and that Defendant “is committing 28 rampant and wholesale copyright infringement” by downloading and distributing 1 “27 [of Plaintiff’s] movies over an extended period of time,” without Plaintiff’s 2 authorization, permission, or consent. See id. at ¶¶ 4, 44, 47. Defendant’s name 3 and address are unknown to Plaintiff, who can identify Defendant only by 4 Defendant’s IP address: 104.185.188.253. Id. at ¶ 12; Dkt. No. 4-1 at 7.1 Plaintiff 5 has identified AT&T Internet, an internet service provider (“ISP”), as the owner of 6 Defendant’s IP address. Dkt. No. 4-1 at 17. Plaintiff therefore seeks the Court’s 7 leave to serve a subpoena on AT&T Internet which will “demand the true name 8 and address of Defendant” and nothing more. Id. at 8. Plaintiff asserts “[w]ithout 9 this information,” it cannot serve Defendant, “nor pursue this lawsuit and protect 10 its copyrights.” Id. 11 II. 12 LEGAL STANDARDS 13 Federal Rule of Civil Procedure 26 provides that “a party may not seek 14 discovery from another source before the parties have conferred as required by 15 Rule 26(f)” unless such discovery is “authorized” by the Court. Fed. R. Civ. P. 16 26(d)(1). “[I]n rare cases,” however, courts allow “limited discovery to ensue after 17 filing of the complaint to permit the plaintiff to learn the identifying facts necessary 18 to permit service on the defendant.” Columbia Ins. Co. v. seescandy.com, 185 19 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 20 (9th Cir. 1980)).2 Courts authorize such “expedited discovery” where the need for 21 the information “outweighs the prejudice to the responding party.” Semitool, Inc. 22 v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (applying “the 23 24 25 1 All page citations are to the page numbers generated by the Court’s CM/ECF 26 system. 27 2 Unless otherwise noted, all citations, subsequent history, and parallel reporter citations are omitted, and in direct quotes, all internal quotation marks, 28 1 conventional standard of good cause in evaluating [a] request for expedited 2 discovery”). “A district court’s decision to grant discovery to determine 3 jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 185 F.R.D. at 578. 4 The Ninth Circuit holds when the Defendant’s identity is unknown at the time 5 the complaint is filed, a court may grant leave to take early discovery to determine 6 the Defendant’s identity “unless it is clear that discovery would not uncover the 7 identit[y], or that the complaint would be dismissed on other grounds.” Gillespie, 8 629 F.2d at 642; see also JustM2J LLC v. Brewer, No. 2:25-CV-00380-DAD-SCR, 9 2025 WL 435827, at *4 (E.D. Cal. Feb. 7, 2025) (noting “California district courts 10 have found good cause to authorize expedited discovery to ascertain the identity 11 of an unknown defendant” and collecting cases). “[T]o prevent abuse of this 12 extraordinary application of the discovery process and to ensure that [the] plaintiff 13 has standing to pursue an action against [the] defendant,” the applicant must 14 “make some showing that an act giving rise to civil liability actually occurred and 15 that the requested discovery is specifically aimed at revealing specific identifying 16 features of the person or entity who committed that act.” Columbia Ins. Co., 185 17 F.R.D. at 579-80. 18 III. 19 DISCUSSION 20 Courts apply a three-factor test when considering motions for early discovery 21 to identify the Defendant. Id. at 578-80. First, the applicant should “identify the 22 missing party with sufficient specificity such that the Court can determine that the 23 defendant is a real person or entity who could be sued in federal court.” Id. at 578. 24 Second, the applicant must describe “all previous steps taken to locate the elusive 25 defendant.” Id. at 579. Third, the applicant should “establish to the Court’s 26 satisfaction that [its] suit . . . could withstand a motion to dismiss.” Id. The Court 27 considers each of these factors as applied to the instant ex parte application. 28 /// 1 A. Identification of Missing Parties with Sufficient Specificity 2 A plaintiff can satisfy its burden of identifying the missing party with specificity 3 by “identify[ing] the unique IP addresses” of the allegedly infringing individuals and 4 then “us[ing] geolocation technology to trace these IP addresses to a point of 5 origin.” See Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL, 2011 WL 6 2470986, at *3 (N.D. Cal. June 21, 2011) (finding plaintiff satisfied first factor). 7 Before filing the complaint, Plaintiff used geolocation technology to trace the IP 8 address to an address in San Diego, California, which is within this District. See 9 Dkt. No. 4-2 at 29. This information was confirmed before the instant motion was 10 filed. See id. The Court finds Plaintiff has “sufficiently shown” that Defendant is a 11 “real person[] likely residing in California who may be sued in this Court.” Pink 12 Lotus, 2011 WL 2470986, at *3; see also Strike 3 Holdings, LLC v. Doe, No. 24- 13 CV-03852-PHK, 2024 WL 4445129, at *4 (N.D. Cal. Oct. 8, 2024) (finding on 14 similar facts plaintiff’s “allegations strongly suggest Defendant Doe is an 15 identifiable person, a subscriber of the IP address . . ., and thus a natural person 16 who can be legally sued in federal court”). 17 B. Attempts to Locate Defendant 18 Next, Plaintiff must identify all steps taken to identify and effect service upon 19 Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff reports it attempted 20 to “correlate” Defendant’s IP address to Defendant by using web search tools, 21 conducted research on other methods of identifying and locating Defendant, and 22 consulted with experts in cybersecurity. Dkt. No. 4-1 at 14. Despite these efforts, 23 Plaintiff has been unable to identify Defendant and represents it cannot do so 24 without the requested discovery. See id. “Good cause exists where, as here, a 25 plaintiff has exhausted its means to identify the defendant through publicly 26 available information and has no other way to identify the bad actors involved in 27 the scheme.” Amazon.com, Inc. v. Does 1-20, No. 2:24-CV-01083-TL, 2024 WL 28 1 4893384, at *2 (W.D. Wash. Nov. 26, 2024). Accordingly, the Court finds Plaintiff 2 endeavored to identify and locate Defendant before filing the instant application. 3 C. Ability to Withstand a Motion to Dismiss 4 Plaintiff’s Complaint alleges a single cause of action against Defendant for 5 direct copyright infringement. See Dkt. No. 1 at ¶¶ 51-56. Plaintiff alleges it owns 6 the subject intellectual property, which Defendant copied and distributed without 7 Plaintiff’s authorization, permission, or consent. Id. at ¶¶ 52-54. The Court finds 8 Plaintiff has alleged a prima facie case of direct copyright infringement against 9 Defendant that would likely withstand a motion to dismiss for failure to state a 10 claim. See Malibu Media, 319 F.R.D. 299, 305 (E.D. Cal. 2016) (finding adult- 11 entertainment company had established a prima facie claim for copyright 12 infringement on similar facts). 13 Plaintiff also bears the burden of establishing jurisdictional facts. See 14 Columbia Ins. Co., 185 F.R.D. at 578. As noted, using geolocation technology, 15 Plaintiff traced Defendant’s IP address to a point of origin within this District before 16 filing its Complaint and confirmed that the IP address traces to this District before 17 filing the instant ex parte application. See Dkt. No. 4-2 at 29. These facts are 18 sufficient to show “that it is likely that the [d]efendant is located within the Southern 19 District of California and is subject to the personal jurisdiction of the Court.” 20 Criminal Prods., Inc. v. Doe, No. 16-cv-02353-DMS-MDD, 2016 WL 6070355, at 21 *3 (S.D. Cal. Oct. 17, 2016). The Court therefore finds Plaintiff has alleged enough 22 facts to show it can likely withstand a motion to dismiss for lack of personal 23 jurisdiction. 24 For the same reason, venue appears proper. Civil actions for copyright 25 infringement “may be instituted in the district in which Defendant or his agent 26 resides or may be found.” 28 U.S.C.A. § 1400(a). Plaintiff alleges “a substantial 27 part” of the alleged wrongful acts occurred in this District, and further that 28 Defendant resides in this District. Dkt. No. 1 at 1 ¶ 10. The Court finds the Complaint could likely withstand a motion to dismiss for 2 improper venue. 3 In sum, and for the reasons stated above, the Court finds Plaintiff has 4 established good cause to pursue expedited discovery. Plaintiff’s ex parte 5 application for leave to subpoena Defendant’s ISP provider is accordingly 6 GRANTED. 7 D. Good Cause Exists for a Limited Protective Order 8 This Court is empowered to issue a protective order to protect any person or 9 party “from annoyance, embarrassment, oppression or undue burden or expense.” 10 Fed. R. Civ. P. 26(c). As other courts have observed, both due to the “highly 11 personal nature” of the alleged infringement and the possibility that the subscriber 12 associated with the IP address is not the infringer, good cause exists to protect 13 Defendant Doe’s privacy until further development of the record. See Strike 3 14 Holdings, 2024 WL 4445129, at *6; accord Columbia Ins. Co., 185 F.R.D. at 578 15 (“People who have committed no wrong should be able to participate online without 16 fear that someone who wishes to harass or embarrass them can file a frivolous 17 lawsuit and thereby gain the power of the court's order to discover their identity.”). 18 Notably, Plaintiff does not oppose, “and in fact[] welcomes,” measures the Court 19 deems necessary to protect the privacy of potential parties and nonparties. Dkt. 20 No. 4-1 at 18. 21 Accordingly, all parties are ORDERED to treat any identifying information 22 regarding Defendant Doe (or any nonparty identified by AT&T Internet) produced 23 in response to the subpoena as “confidential” until Defendant Doe or other 24 nonparties have had the opportunity to file a motion with the Court to proceed in 25 the litigation anonymously and pursuant to a Stipulated Protective Order, and the 26 Court has had a chance to rule on that motion. For the purposes of this Order, 27 “confidential” treatment means the information cannot be used for any purpose 28 outside of this litigation, and within this litigation can only be accessed by the 1 following: individual parties; executives or other designees of corporate parties 2 who are tasked with making decisions about the litigation; counsel for the parties 3 (in-house and outside), and staff working on this litigation at counsel’s direction, 4 including e-discovery or other technical personnel; and outside discovery vendors 5 retained by the parties. 6 IV. 7 CONCLUSION 8 For the reasons stated above, Plaintiff’s Ex Parte Application for Leave to 9 Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [Dkt. No. 4] is 10 GRANTED. It is hereby further ORDERED that: 11 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon 12 AT&T Internet to obtain the name and address only of Defendant John Doe, 13 based on the IP address identified in the Complaint: 104.185.188.253. The 14 subpoena shall not seek Defendant’s telephone number, email address, or Media 15 Access Control (MAC) address, as none of this information is necessary for 16 Plaintiff to identify and serve Defendant. 17 2. The return date of the subpoena must allow for at least forty-five (45) 18 days from service to production. If AT&T Internet intends to move to quash the 19 subpoena, it must do so prior to the return date of the subpoena. If a motion to 20 quash or other customer challenge is brought, AT&T Internet must preserve the 21 information sought by Plaintiff pending resolution of the motion or challenge. 22 3. AT&T Internet shall have fourteen (14) calendar days after service of 23 the subpoena to notify its subscriber that his/her identity has been subpoenaed by 24 Plaintiff. The subscriber whose identity has been subpoenaed shall have thirty 25 (30) calendar days from the date of such notice to challenge the disclosure to 26 Plaintiff by filing an appropriate pleading with this Court contesting the subpoena. 27 4. Plaintiff shall serve a copy of this Order with any subpoena served 28 upon AT&T Internet pursuant to this Order. AT&T Internet, in turn, must provide a 1 ||copy of this Order along with the required notice to the subscriber whose identity 2 sought pursuant to this Order. 3 5. — Any identifying information concerning Defendant Doe or any nonparty 4 ||provided in response to the subpoena shall be treated as “confidential” in 5 ||accordance with the terms set forth above. 6 6. Plaintiff may use any information disclosed pursuant to the subpoena 7 |{only in pursuing this litigation. 8 7. No other discovery is authorized at this time. 9 IS SO ORDERED. 10 || Dated: July 30, 2025 ae ZL Tb Kho a“ ‘Hon. DavidD.Leshner □□□□ 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28