1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 21-cv-00294-SI

8 Plaintiff, ORDER GRANTING PLAINTIFF'S EX 9 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 10 JOHN DOE SUBSCRIBER ASSIGNED IP SUBPOENA ADDRESS 104.56.119.158, 11 Re: Dkt. No. 7 Defendant. 12

13 Before the Court is an Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior 14 to a Rule 26(f)Conference, filed by plaintiff Strike 3 Holdings, LLC. Dkt. No. 7. For the reasons 15 set forth below, the Court hereby GRANTS plaintiff’s Ex Parte Application for Leave to Serve a 16 Third-Party Subpoena Prior to a Rule 26(f)Conference. 17

18 BACKGROUND 19 Plaintiff owns and distributes adult motion pictures on websites and DVDs. Dkt. No. 1, 20 Compl. ¶¶ 2-3. On January 12, 2021, plaintiff filed a complaint alleging that Doe Defendant with 21 IP address 104.56.119.158 stole plaintiff’s works by downloading and distributing 42 of plaintiff’s 22 adult motion pictures over an extended time period and without plaintiff’s permission. Id. at ¶ 4. 23 On February 3, 2021, plaintiff filed an Ex Parte Application for Leave to Serve a Third- 24 Party Subpoena Prior to Rule 26(f) Conference. Dkt. No. 7. Plaintiff seeks leave to serve 25 defendant’s internet service provider, AT&T U-Verse, with a subpoena under Federal Rule of Civil 26 Procedure 45. Id. at 2. The subpoena will request Doe Defendant’s name and address, which will 27 be used to pursue plaintiff’s claims in the complaint. Id. 1 LEGAL STANDARD 2 Generally, formal discovery is only permitted after the parties have conferred as required by 3 Federal Rule of Civil Procedure 26(f). However, a court may grant a request to take discovery prior 4 to the parties' meeting under Rule 26(f) where the requesting party demonstrates “good cause.” See 5 UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA,

, at *4 (N.D. Cal. Sept. 3, 6 2008); Semitool, Inc. v. Tokyo Electron Am., Inc.,

(N.D. Cal. Apr. 19, 2002). 7 Good cause exists “where the need for expedited discovery, in consideration of the administration 8 of justice, outweighs the prejudice to the responding party.” UMG Recordings,

9 at *4. 10 To determine whether good cause justifies early discovery, courts consider whether the 11 plaintiff has (1) “identif[ied] the missing party with sufficient specificity such that the Court can 12 determine that defendant is a real person or entity who could be sued in federal court”; (2) 13 “identif[ied] all previous steps taken to locate the elusive defendant”; (3) “establish[ed] to the 14 Court's satisfaction that [the suit] could withstand a motion to dismiss”; and (4) filed a request 15 showing “a reasonable likelihood that the discovery process will lead to identifying information 16 about defendant that would make service of process possible.” Columbia Ins. Co. v. Seescandy.com, 17

, 578–580 (N.D. Cal. 1999). Good cause is frequently found in cases involving 18 claims of infringement and unfair competition. See Semitool,

. 19 20 DISCUSSION 21 For the reasons stated below, the Court finds that plaintiff has demonstrated good cause for 22 early discovery. 23 24 I. Identifying Defendant with Sufficient Specificity 25 Plaintiff has identified defendant with sufficient specificity such that the Court can 26 determine that the defendant is a real party. Plaintiff identified an IP address currently owned by 27 defendant. Compl. ¶ 5. See MCGIP, LLC v. Does 1-149, No. C 11-02331 LB,

, 1 complaint listed defendants by IP addresses on day of alleged infringement). The complaint alleges 2 that plaintiff identified defendant’s IP address by using Maxmind Inc.’s geolocation technology. 3 Compl. ¶ 9. On two separate occasions, the geolocation technology traced defendant’s IP address to 4 a physical address within the Northern District of California.

Therefore, the Court finds that 5 Plaintiff has provided sufficient information demonstrating that doe defendant is a real person who 6 may be subject to the Court’s jurisdiction. See Strike 3 Holdings, LLC v. Doe., No. 19-cv-232, 2019

at *2 (N.D. Cal. Feb. 13, 2019) (finding doe defendant sufficiently specified where 8 plaintiff “established ‘Maxmind’ geolocation technology to twice trace Defendant’s IP address to a 9 physical location within this district . . . giv[ing] the Court personal jurisdiction over Defendant and 10 over Plaintiff’s federal copyright claim.”) (internal citations omitted); Pink Lotus Entm't. LLC v. 11 Does 1–46,

, at *3 (N.D. Cal. June 21, 2011) (finding doe defendants identified 12 with sufficient specificity where complaint listed IP addresses obtained through geolocation 13 technology). 14 15 II. Previous Steps to Locate Defendant 16 Plaintiff has identified previous steps taken to locate defendant. Plaintiff used geolocation 17 technology and defendant’s IP address to trace defendant’s location to within the Northern District 18 of California. Dkt. No. 7-1 (Declaration of Emilie Kennedy) ¶ 5. Plaintiff conducted web searches 19 and consulted with investigators to locate defendant’s identity. Dkt. No. 7 at 10. However, 20 plaintiff’s attempts to identify defendant’s name and address were unsuccessful because only 21 defendant’s identified Internet Service Provider, AT&T U-verse has defendant’s identifying 22 information.

7 at 1. See Compl. ¶¶ 5 (“Defendant’s Internet Service Provider (‘ISP’), AT&T 23 U-verse, can identify Defendant through his or her IP address 104.56.119.158.”); 28 (“plaintiff has 24 developed, owns, and operates an infringement detection system, named ‘VXN Scan.’”); 7-1 25 (Declaration of David Williamson) ¶ 78 (“VXN connects with the Maxmind database to determine 26 both the Internet Service Provider that assigned a particular IP address as well as the city and state 27 the IP Address traces to”). 1 III. Ability to Withstand Motion to Dismiss 2 To withstand a motion to dismiss on a claim of direct copyright infringement, the plaintiff 3 must (1) “show ownership of the allegedly infringed material” and (2) “demonstrate that the alleged 4 infringer violates at least one exclusive right granted to copyright holders under

.” 5 Disney Enterprises, Inc. v. VidAngel, Inc.,

(9th Cir. 2017) (citing Perfect 10, Inc. 6 v. Amazon.com, Inc.,

(9th Cir. 2007)). A copyright holder has the exclusive 7 rights to reproduce, distribute, publicly display, perform, and create derivative works of the 8 copyrighted work.

. 9 Plaintiff has demonstrated that its copyright claim can withstand a motion to dismiss. 10 Plaintiff alleges that it owns copyrights to the motion pictures allegedly infringed, showing 11 ownership of the allegedly infringed material. Compl. ¶ 46 (“Plaintiff owns the copyrights to the 12 Works and the Works have been registered with the United States Copyright Office.”). Moreover, 13 plaintiff has sufficiently demonstrated a violation of at least one of plaintiff’s copyrights by alleging 14 defendant “downloaded, copied, and distributed Plaintiff’s Works without authorization.” Id. ¶ 44. 15 16 IV. Likelihood that Discovery Will Lead to Identifying Information 17 Finally, plaintiff has shown that plaintiff’s requested subpoena is reasonably likely to lead 18 to defendant’s identifying information. Defendant’s internet service provider, AT&T U-verse, will 19 be able to provide defendant’s name and address in response to a subpoena. Id. ¶ 5. 20 21 CONCLUSION 22 For the foregoing reasons and for good cause shown, the Court hereby GRANTS plaintiff’s 23 Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f)Conference. 24 Plaintiff may serve a Rule 45 subpoena on AT &T U-Verse to obtain the true name and address of 25 the Doe Defendant listed in plaintiff’s complaint. The subpoena must have a copy of this Order 26 attached. 27 AT&T U-Verse will have 30 days from the date of service upon it to serve each entity or 1 U-Verse may serve Doe defendant using any reasonable means, including written notice to his or 2 her last known address, transmitted either by first-class mail or via overnight service. 3 The Doe Defendant will have 30 days from the date of service upon him or her to file any 4 applications contesting the subpoena (including an application to quash or modify the subpoena) 5 || with this Court. If the Doe defendant does not contest the subpoena within that 30-day period, AT&T 6 || U-Verse will have 10 days to produce the information responsive to the subpoena to Plaintiff Strike 7 | 3. 8 AT&T U-Verse must preserve any subpoenaed information pending the resolution of any 9 || timely filed application to quash. 10 AT&T U-Verse must confer with plaintiff and may not assess any charge in advance of 11 providing the information requested in the subpoena. Should AT&T U-Verse elect to charge for the 12 || costs of production, it must provide Strike 3 (i) a billing summary and (1i) cost reports that serve as 5 13 a basis for such billing summary and any costs claimed by AT&T. 14 Plaintiff Strike 3 must serve a copy of this order along with any subpoenas issued pursuant 15 to this order to the necessary entities. 16 Any information disclosed to Strike 3 in response to a Rule 45 subpoena may be used by 3 17 Strike 3 solely for the purpose of protecting its rights as set forth in its complaint.

19 IT IS SO ORDERED. 20 || Dated: February 10, 2021 Site WU tee 21 SUSAN ILLSTON United States District Judge 23 24 25 26 27 28