2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 STRIKE 3 HOLDINGS, LLC, Case No.: 22cv484-BAS (MSB)

11 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 12 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA 13 JOHN DOE subscriber assigned IP address PRIOR TO A RULE 26(f) CONFERENCE 76.176.89.109, 14 [ECF No. 4] Defendant. 15 16 17 On April 29, 2022, Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed an “Ex-Parte 18 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference” 19 (“Ex Parte Application”). (ECF No. 4.) Plaintiff seeks to subpoena Defendant John Doe’s 20 Internet Service Provider (“ISP”) Spectrum for “limited , immediate discovery . . . so that 21 Plaintiff may learn Defendant’s identity, further investigate Defendant’s role in the 22 infringement, and effectuate service.” (ECF No.4-1 at 7.) Because Defendant has not 23 been identified, no opposition or reply briefs have been filed. For the reasons discussed 24 below, the Ex Parte Application is GRANTED. 25 I. BACKGROUND 26 Plaintiff owns the copyrights to multiple collections of adult motion pictures. (ECF 27 No. 4-2 at 4.) On April 8, 2022, Plaintiff filed a Complaint alleging that Defendant John 2 copyrighted works over an extended period of time. (ECF No. 1 at 2.) Plaintiff alleges it 3 used its proprietary forensic software, VXN Scan, to discover that Defendant’s IP address 4 was illegally distributing Plaintiff’s copyrighted motion pictures. (ECF No. 4-1 at 7; ECF 5 No. 4-2 at 20-22.) 6 On April 29, 2022, Plaintiff filed the instant Ex Parte Application requesting leave 7 to serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s ISP, 8 Spectrum. (ECF No. 4-1 at 7.) Plaintiff’s subpoena only asks for the name and address 9 of the IP subscriber and Plaintiff “will only use this information to prosecute the claims 10 made in its Complaint.” (Id. at 8.) Plaintiff further claims that “[w]ithout this 11 information, Plaintiff cannot serve Defendant nor pursue this lawsuit and protect its 12 copyrights.” (Id.) 13 II. LEGAL STANDARD 14 Generally, formal discovery is not permitted before the parties have conferred 15 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). In rare 16 situations, however, courts have made exceptions “permitting limited discovery to 17 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 18 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185

, 577 (N.D. Cal. 1999). Courts in the Ninth Circuit permit early discovery when 20 a plaintiff has established “good cause.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208

, 275–76 (N.D. Cal. 2002). “Good cause” is established “where the need for 22 expedited discovery, in consideration of the administration of justice, outweighs the 23 prejudice to the responding party.”

24 The Ninth Circuit permits the use of discovery to ascertain the identifies of 25 unknown defendants, “unless it is clear that discovery would not uncover the identities, 26 or that the complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 27 Collective of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C 2 decision to grant discovery to determine jurisdictional facts is a matter of discretion.” 3 Columbia Ins. Co., 185 F.R.D. at 578. 4 District Courts in the Ninth Circuit typically apply a three-factor test when 5 considering motions for early discovery to identify Doe defendants. Id. at 578–80. First, 6 the moving party should be able to “identify the missing party with sufficient specificity 7 [] that the Court can determine that [the] defendant is a real person or entity who could 8 be sued in federal court.” Id. at 578. Second, the movant “should identify all previous 9 steps taken to locate the elusive defendant” to ensure “that [the movant has made] a 10 good faith effort to comply with the requirements of the service of process and 11 specifically identifying defendants.” Id. at 579. Third, the plaintiff “should establish that 12 its lawsuit could withstand a motion to dismiss.” Id.; see also Gillespie, 629 F.2d at 642 13 (stating early discovery to identify unknown defendants should be permitted unless the 14 complaint would be dismissed on other grounds). 15 In addition to satisfying all three factors, plaintiff should provide “reasons 16 justifying the specific discovery requested [and] identification of a limited number of 17 persons or entities on whom discovery process might be served and for which there is a 18 reasonable likelihood that the discovery process will lead to identifying information 19 about defendant that would make service of process possible.” Columbia Ins. Co., 185 20 F.R.D. at 580; see also Gillespie, 629 F.2d at 642 (explaining that early discovery is 21 precluded if it is not likely to provide the identity of the defendant). These safeguards 22 are intended to ensure that early discovery “will only be employed in cases where the 23 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 24 pre-service, and will prevent the use of this method to harass or intimidate.” Columbia 25 Ins. Co., 185 F.R.D. at 578. 26 III. ANALYSIS 27 The Cable Privacy Act prohibits a cable operator from disclosing “personally 2 operator, however, may disclose the information if the disclosure is made pursuant to a 3 court order and the cable operator notifies the subscriber of the order.

551(c)(2)(B). A cable operator is “any person or group of persons” who “provides cable 5 service over a cable system and directly or through one or more affiliates owns a 6 significant interest in such cable system,” or “otherwise controls or is responsible for, 7 through any arrangement, the management and operation of such a cable system.” 47

(5). 9 Spectrum is a cable operator, and the information Plaintiff seeks falls within the 10 exception to the Cable Privacy Act’s disclosure prohibition. See

(c)(2)(B). 11 Accordingly, if Plaintiff satisfies the multi-factor test used by district courts to determine 12 whether early discovery is warranted, Defendant’s ISP may disclose the requested 13 information pursuant to this Court’s order. 14 A. Plaintiff Has Identified Defendant with Sufficient Specificity 15 Plaintiff must identify Defendant with enough specificity to allow the Court to 16 determine that Defendant is a real person or entity, subject to the jurisdiction of this 17 Court. See Columbia Ins. Co., 185 F.R.D. at 578. “[A] plaintiff identifies Doe defendants 18 with sufficient specificity by providing the unique IP addresses assigned to an individual 19 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 20 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC, 21

, at *4. 22 Here, Plaintiff’s infringement detection system, VXN, is used to identify IP 23 addresses used by individuals infringing on Plaintiff’s movies through the BitTorrent 24 protocol. (ECF No. 4-2 at 9-15.) The VXN system identified Defendant’s IP address 25 76.176.89.10 uploading a piece or pieces of Plaintiff’s copyrighted films “in a transaction 26 initiated on 03/31/2022 13:46:56 UTC.” (ECF No. 4-2 at 19-22.) Further, the functions 27 that Plaintiff accuses Defendant of using require human operation. See Christopher 2 centralized server that hosts or transfers the data files in question. Instead, BitTorrent 3 involves users interacting directly with other users to upload and download the 4 content.”). Accordingly, Plaintiff has established that an actual human was involved in 5 the downloading and sharing of Plaintiff’s allegedly infringed works. 6 Plaintiff also used the Maxmind database of IP address information to identify 7 both the Internet Service Provider, Spectrum, and the city and state where the IP 8 address 76.176.89.109 is used. (ECF No. 4-2 at 14.) Therefore, Plaintiff has 9 demonstrated with sufficient specificity that Defendant is a real person or entity, likely 10 subject to the jurisdiction of this Court. See Crim. Prods., Inc. v. Doe-72.192.163.220, 11 Case No. 16-cv-2589 WQH (JLB),

, at *3 (S.D. Cal. Nov. 18, 2016) 12 (holding that the sufficient specificity threshold is satisfied when the IP address 13 identified by Maxmind geolocation services identifies a physical location within the 14 court’s jurisdiction). 15 B. Plaintiff Made a Good Faith Effort to Identify Defendant 16 Plaintiff must also demonstrate that it has taken previous steps to locate and 17 serve the Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff maintains it 18 diligently attempted to identify Defendant by searching for Defendant’s IP address “on 19 various web search tools, including basic search engines like www.google.com,” but 20 does not submit evidence supporting this claim. (ECF No. 4-1 at 14.) It further 21 conducted its own research to identify Defendant by “legislative reports, agency 22 websites, information technology guides, governing case law, etc.” (Id.) Despite these 23 efforts, Plaintiff was unable to identify Defendant’s identity from the IP address. The 24 Court therefore finds that Plaintiff has made a good faith effort to identify, locate, and 25 serve Defendant. See Malibu Media, LLC v. John Does 1 through 6, Civil No. 12–cv– 26 1355–LAB (DHB),

, at *3 (S.D. Cal. Sept. 26, 2012) (finding plaintiff’s 27 efforts to identify Doe defendant’s identity were sufficient where “there is no other way 2 LB,

, at *2 (N.D. Cal. Nov. 4, 2011) (finding plaintiff’s attempts to 3 identify and locate defendant sufficient, where the plaintiff “investigated and collected 4 data on unauthorized distribution of copies of the [alleged infringed work] on 5 BitTorrent-based peer-to-peer networks”). 6 C. Plaintiff’s Suit Could Withstand a Motion to Dismiss 7 Plaintiff must further show that the Complaint could withstand a motion to 8 dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. As relevant here, a claim may be 9 dismissed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for lack of 10 subject matter jurisdiction, lack of personal jurisdiction, or for failure to state a claim. 11 See Fed. R. Civ. P. 12(b)(1), (2), (6). As to both subject matter and personal jurisdiction, 12 Plaintiff has alleged sufficient facts to survive a motion to dismiss. For subject matter 13 jurisdiction, Plaintiff’s Complaint alleges that “[t]his Court has subject matter jurisdiction 14 over this action pursuant to 28 U.S.C § 1338 (jurisdiction over copyright actions).” (ECF 15 No. 4-1 at 2.) Regarding personal jurisdiction, Plaintiff has identified Defendant’s IP 16 address associated with the alleged infringing downloading and copying, and traced it to 17 a physical address in San Diego, California. (ECF No. 4-2 at 29.) This location is within 18 the geographical boundaries of this district. Thus, it appears the Complaint can 19 withstand a motion to dismiss for lack of personal jurisdiction because Defendant’s IP 20 address can be traced to this district. 21 Lastly, a suit may be dismissed pursuant to Rule 12(b) for “failure to state a claim 22 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Plaintiff’s Complaint alleges 23 a single cause of action for direct copyright infringement. (ECF No. 4-1 at 7-9). Thus, 24 Plaintiff must satisfy two requirements to present a prima facie case of direct copyright 25 infringement: “(1) ownership of a valid copyright; and (2) that the defendant violated 26 the copyright owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 27

(9th Cir. 2004). Here, Plaintiff alleges that it is the copyright owner 2 distribute Plaintiff’s copyrighted motion pictures without authorization, permission, or 3 consent. (Id.) Assuming Plaintiff’s allegations are true, they state a claim on which relief 4 can be granted. See A&M Recs., Inc. v. Napster, Inc.,

, 1013–14 (9th Cir. 5 2001) (finding plaintiffs sufficiently demonstrated ownership and infringement by 6 showing Napster allowed its users to download copyrighted music, and more than 7 seventy percent of which was owned or administered by the plaintiffs); see also Malibu 8 Media, LLC v. Doe, Case No. 16CV1916-GPC(JMA),

, at *2 (S.D. Cal. 9 Oct. 25, 2016) (holding plaintiff alleged a prima facie case of copyright infringement by 10 alleging that plaintiff owned twelve copyrighted movies at issue, and that defendant 11 infringed plaintiff’s copyrights by copying and distributing plaintiff’s movies through the 12 BitTorrent network without plaintiff’s permission). Therefore, Plaintiff has sufficiently 13 alleged a prima facie claim of copyright infringement which could withstand a motion to 14 dismiss. 15 D. Whether Requested Discovery Will Lead to Identifying Information 16 Lastly, the Plaintiff must prove that the requested discovery is likely to lead to 17 identifying information. As discussed above, Plaintiff’s forensic investigation directly 18 connected Defendant’s IP address 76.176.89.109 to the alleged infringements, and the 19 only entity that can identify Defendant based on this information is Spectrum. (ECF No. 20 4-2 at 22.) Although the owner of the IP address may not be the actual infringer, the 21 forensic investigation and the Complaint identifies Defendant as the owner of the IP 22 address 76.176.89.109. Accordingly, if Spectrum provides Plaintiff with Defendant’s 23 name and address, this will likely lead to information making it possible for Plaintiff to 24 effectuate service on Defendant. 25 IV. CONCLUSION 26 For the foregoing reasons, the Court finds that Plaintiff has demonstrated good 27 cause to conduct early discovery and GRANTS the Ex Parte Application for Leave to 1 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 2 ||45 on Spectrum, seeking only the name and address of the subscriber assigned to the IP 3 address 76.176.89.109. Plaintiff may not subpoena additional information about the 4 || subscriber; 5 2. Plaintiff may only use the disclosed information to protect its copyrights in 6 || the instant litigation; 7 3. Within fourteen (14) calendar days after service of the subpoena, Spectrum 8 || shall notify the subscriber assigned the IP address 76.176.89.109 that his, her, or its 9 ||identity has been subpoenaed by Plaintiff; 10 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 11 || calendar days from the date of the notice to challenge the disclosure of his, her, or its 12 ||name and address by filing an appropriate pleading with this Court contesting the 13 || subpoena; 14 5. If Spectrum wishes to move to quash the subpoena, it shall do so before 15 || the return date of the subpoena. The return date of the subpoena must allow for at 16 || least forty-five (45) days from service to production. If a motion to quash or other 17 || customer challenge is brought, Spectrum shall preserve the information sought by 18 || Plaintiff in the subpoena pending resolution of the motion or challenge; 19 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and 20 ||served to Spectrum pursuant to this Order; 21 7. Spectrum must provide a copy of this Order along with the required notice 22 the subscriber whose identity is sought pursuant to this Order. 23 8. No other discovery is authorized at this time. 24 IT IS SO ORDERED. 25 ||Dated: May 27, 2022 SAL 26 4 L <—{— Honorable Michael S. Berg United States Magistrate Judge 28