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.: 21-CV-1335-BAS-WVG

12 Plaintiff, ORDER ON EX PARTE MOTION 13 v. FOR DISCOVERY FOR LEAVE TO SERVE A THIRD-PARTY 14 JOE DOE, subscriber assigned IP address SUBPOENA PRIOR TO A RULE 76.204.178.1, 15 26(F) CONFERENCE Defendant. 16 17 18 19 Pending before this Court is Plaintiff’s Ex Parte Motion for Discovery for Leave to 20 Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (“Motion”). (Doc. No. 21 4.) Plaintiff seeks to serve a third-party subpoena per Rule 45 of the Federal Rules of Civil 22 Procedure to obtain Defendant’s true name and address because, “without this information, 23 Plaintiff cannot serve Defendant nor pursue this lawsuit and protect its copyrights.” (Id., 24 8:6-7.) Having reviewed and considered Plaintiff’s Motion, the Court GRANTS Plaintiff’s 25 request to obtain discovery for the limited purpose of identifying Defendant’s true name 26 and address. The Court elaborates below. 27 Rule 26(d)(1) of the Federal Rules of Civil Procedure bars parties from engaging in 28 discovery in the absence of a court order prior to the Rule 26(f) conference. R. Civ. P. 1 26(d)(1). At the same time, Rule 26(d)(1) is not absolute. Courts carve out exceptions for 2 limited discovery where good cause is shown, for example where a plaintiff needs to “learn 3 the identifying facts necessary to permit service on the defendant.” Strike 3 Holdings, LLC 4 v. Doe,

at *1 (S.D. Cal., Dec. 14, 2017); Criminal Prods., Inc. v. Doe- 5 72.192.163.220,

at *1 (S.D. Cal. Nov. 18, 2016). To that end, district 6 courts within the Ninth Circuit employ a three-part test to determine whether limited 7 discovery to identify certain defendants is appropriate, namely whether plaintiff (1) 8 identified the missing party with “sufficient specificity such that the court can determine 9 the defendant is a real person or entity who could be sued in federal court;” (2) has 10 described “all previous steps taken to locate the elusive defendant;” and (3) has 11 “establish[ed] its lawsuit could withstand a motion to dismiss.”

(citing Columbia Ins. 12 Co. v. Seescandy.com,

(N.D. Cal., Mar. 8, 1999)). 13 Here, Plaintiff has made the requisite showing of good cause by (1) taking steps to 14 identify Defendant’s internet protocol (“I.P.”) address; and (2) employing informal 15 discovery methods involving internet research and consulting with computer investigators 16 and cyber security experts to discover Defendant’s true name and address without judicial 17 intervention. (Doc. No. 4-1, 14:6-14.) See Holdings, LLC, v. Collective of Dec. 29, 2011, 18 Sharing Hash,

at *4 (S.D. Cal. May 4, 2012). Further, Plaintiff sets 19 forth sufficient factual allegations as to each of the elements of direct copyright 20 infringement and shows the Complaint could withstand a motion to dismiss if one were 21 brought. Specifically, Plaintiff pleads (1) it is the owner of a valid copyrighted work; (2) 22 Defendant downloaded and distributed Plaintiff’s files; (3) Plaintiff did not consent to 23 Defendant’s downloads or distribution of its files; and (4) Defendant “triggered a cascade 24 of technical operations, making Defendant the proximate cause of all of the violations of 25 Plaintiff’s copyrights.” (Doc. No. 4-1, 16:11-27.) Finally, Plaintiff’s Motion demonstrates 26 a reasonable likelihood Plaintiff will be able to identify Defendant’s true name and address 27 through a Rule 45 subpoena. (Id., 17:20-18:4.) For these reasons, the Court finds good 28 cause exists to grant Plaintiff’s Motion, consistent with certain procedural safeguards, set 1 || forth immediately below. 2 Within ten (10) days of issuance of this Order, Plaintiff shall serve a subpoena 3 || pursuant to Rule 45 upon AT&T U-verse that seeks to obtain Defendant John Doe’s true 4 ||name and address. No other information may be solicited through the subpoena. To that 5 Plaintiff shall not use the disclosed information for any other purpose except to protect 6 rights through this litigation. Further, the return date of the subpoena shall allow for at 7 || least forty-five (45) days from service to production. 8 Next, within fourteen (14) calendar days of service of the subpoena, AT&T U-verse 9 notify Defendant John Doe of the subpoena as served by Plaintiff and its contents. 10 || Should AT&T U-verse seek to quash the subpoena, it shall do so before the return date of 11 || the subpoena. 12 Finally, from the date of AT&T’s notice of subpoena to Defendant John Doe, 13 || Defendant John Doe shall have thirty (30) calendar days to oppose the disclosure of his/her 14 name and/or address by filing an appropriate pleading with this Court. 15 Plaintiff shall serve a copy of this Court’s Order with any subpoena served 16 || pursuant to this Order to AT&T U-verse. AT&T U-verse shall then provide a copy of this 17 || Order to Defendant John Doe concurrent with its notice of Plaintiff's Rule 45 subpoena to 18 || Defendant John Doe. 19 IT IS SO ORDERED. 20 || Dated: August 18, 2021 | Se 21 7 Hon. William V. Gallo United States Magistrate Judge 23 24 25 26 27 28