1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 23-cv-01964-EMC

8 Plaintiff, ORDER GRANTING EX PARTE 9 v. APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA 10 JOHN DOE SUBSCRIBER ASSIGNED IP PRIOR TO RULE 26(F) CONFERENCE ADDRESS 98.45.38.202, 11 Docket No. 7 Defendant. 12 13 14 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) has filed a copyright infringement action 15 against Defendant John Doe. Strike 3 alleges that Mr. Doe has infringed 28 of Strike 3’s motion 16 pictures using BitTorrent. Docket No. 1 (Complaint) ¶ 4. Currently pending before the Court is 17 Strike 3’s ex parte application for leave to serve a third-party subpoena prior to a Rule 26(f) 18 conference. Docket No. 7. 19 I. DISCUSSION 20 The Court has reviewed the application and supporting materials, as well as the complaint. 21 See, e.g., Docket No. 7-1 Exh. A (Declaration of David Williamson) ¶¶ 34–36 (testifying that 22 Strive 3 “strives to only file strong cases against extreme infringers . . . only those infringers who 23 engage not only in illegal downloading, but also in large scale unauthorized distribution of our 24 content,” “do[es] not seek settlements unless initiated by the defendant or their counsel,” “do[es] 25 not send demand letters,” and “are careful not to proceed with a case against a defendant unless we 26 feel we have a strong case and a good faith basis”); Docket No. 7-1 Exh. B (Declaration of Patrick 27 Paige) ¶¶ 13, 16–18, 26 (testifying that upon reviewing the PCAP (packet capture), confirming 1 03/31/2023 05:14:18 UTC” that “uploaded a piece or pieces of a file corresponding to hash value 2 29B35191E40ABBB81FAF7BD06F20449D5CE5EAB3 to VXN Scan”); Docket No. 7-1 Exh. C 3 (Declaration of Susan Stalzer) ¶ 11 (testifying that each infringing file was a copy of one of Strike 4 3’s motion pictures that is identical or substantially similar); id. ¶ 12 (confirming that the ISP 5 Comcast did own Mr. Doe’s IP address at the time of infringements via the American Registry for 6 Internet Numbers); Docket No. 7-1 Exh. D (Declaration of Emilie Kennedy) ¶¶ 4–8 (confirming 7 that the IP address 98.45.38.20 traced to a location in Concord, California, then presently to a 8 location in Martinez, California). 9 For reasons similar to those articulated in another Strike 3 case before the Court, see Strike 10 3 Holdings, LLC v. Doe, No. C-18-5994-EMC (N.D. Cal. Nov. 6, 2018) (Docket No. 10), the 11 Court GRANTS the application for what is, in effect, limited early discovery. 12 The Court notes, however, that, although it is permitting limited early discovery, it is not 13 precluding Mr. Doe from filing a 12(b)(6) motion to dismiss nor is it prejudging any such motion. 14 The Court also advises Strike 3 that, upon obtaining the name and address of Mr. Doe, it has a 15 Rule 11 obligation to determine whether to proceed with the lawsuit and, in that regard, it should 16 be mindful of the Ninth Circuit’s decision in Cobbler Nevada, LLC v. Gonzales,

, 17 1144 (9th Cir. 2018) (stating that “a bare allegation that a defendant is the registered subscriber of 18 an Internet Protocol (‘IP’) address associated with infringing activity is [in]sufficient to state a 19 claim for direct or contributory infringement”). 20 II. CONCLUSION 21 It is hereby ORDERED that Plaintiff may immediately serve a Rule 45 subpoena on 22 Comcast Cable to obtain the true name and address of the Doe Defendant at IP address 23 98.45.38.202. A copy of this Order must be attached to the subpoena, and any information 24 disclosed to Plaintiff in response to the subpoena may be used by Plaintiff solely for the purpose 25 of serving Defendant and prosecuting the claims asserted in the complaint. 26 It is further ORDERED that Comcast Cable will have 30 days from the date of service 27 upon it to serve the Doe Defendant with a copy of the subpoena and a copy of this Order. 1 upon him to file any motions contesting the subpoena with this Court. If that 30-day period lapses 2 without the Doe Defendant contesting the subpoena, Comcast Cable shall produce the information 3 responsive to the subpoena to Plaintiff within 10 days. 4 It is further ORDERED that Plaintiff shall not publicly disclose any of the Doe 5 Defendant’s identifying information until he has had the opportunity to file a motion with this 6 Court for leave to proceed anonymously and that motion is ruled on by the Court. The Doe 7 Defendant will have 30 days from the date of service upon him to file such a motion, and he may 8 file the motion under seal. 9 This order disposes of Docket No. 7. 10 11 IT IS SO ORDERED. 12 13 Dated: May 9, 2023 14 15 ______________________________________ EDWARD M. CHEN 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27