1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 23-cv-04950-EMC (EMC)

8 Plaintiffs, ORDER GRANTING PLAINTIFF’S EX 9 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 10 JOHN DOE SUBSCRIBER ASSIGNED IP SUBPOENA PRIOR TO RULE 26(F) ADDRESS 108.226.161.139, CONFERENCE 11 Defendants. Docket No. 8 12 13 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) has filed a copyright infringement action 14 against Defendant John Doe. Strike 3 alleges that Mr. Doe has infringed 44 of Strike 3’s motion 15 pictures using a BitTorrent protocol. Docket No. 1 (Complaint) ¶ 4. Currently pending before the 16 Court is Strike 3’s ex parte application for leave to serve a third-party subpoena prior to a Rule 17 26(f) conference. Docket No. 8. 18 I. DISCUSSION 19 The Court has reviewed the application and supporting materials, as well as the complaint. 20 See, e.g., Docket No. 8-1 Ex. A (Declaration of David Williamson) ¶¶ 34–36 (testifying that Strive 21 3 “strives to only file strong cases against extreme infringers . . . only those infringers who engage 22 not only in illegal downloading, but also in large scale unauthorised distribution of our content,” 23 “do[es] not seek settlements unless initiated by the defendant or their counsel,” “do[es] not send 24 demand letters,” and “are careful not to proceed with a case against a defendant unless we feel we 25 have a strong case and a good faith basis”); Docket No. 7-1 Ex. B (Declaration of Patrick Paige) 26 ¶¶ 16–18, 26 (testifying that upon reviewing the PCAP (packet capture), confirming that “the 27 PCAP is evidence of a recorded transaction with IP address 108.226.161.139 initiated at 1 849610A8B19EE3B53DB6532BFED64DCF1B78382C to VXN Scan”); Docket No. 7-1 Ex. C 2 (Declaration of Susan Stalzer) ¶ 11 (testifying that each infringing file was a copy of one of Strike 3 3’s motion pictures that is “identical, strikingly similar, or substantially similar to the original 4 work”); Docket No. 7-1 Ex. D (Declaration of Emilie Kennedy) ¶¶ 4–8 (confirming that the IP 5 address 108.226.161.139 traced to a location in Santa Clara, California). 6 For reasons similar to those articulated in another Strike 3 case before the Court, see Strike 7 3 Holdings, LLC v. Doe, No. C-18-05994-EMC (N.D. Cal. Nov. 6, 2018) (Docket No. 10), the 8 Court GRANTS the application for what is, in effect, limited early discovery. 9 The Court notes, however, that, although it is permitting limited early discovery, it is not 10 precluding Mr. Doe from filing a 12(b)(6) motion to dismiss nor is it prejudging any such motion. 11 The Court also advises Strike 3 that, upon obtaining the name and address of Mr. Doe, it has a 12 Rule 11 obligation to determine whether to proceed with the lawsuit and, in that regard, it should 13 be mindful of the Ninth Circuit’s decision in Cobbler Nevada, LLC v. Gonzales,

, 14 1144 (9th Cir. 2018) (stating that “a bare allegation that a defendant is the registered subscriber of 15 an Internet Protocol (‘IP’) address associated with infringing activity is [in]sufficient to state a 16 claim for direct or contributory infringement”). 17 II. CONCLUSION 18 It is hereby ORDERED that Plaintiff may immediately serve a Rule 45 subpoena on 19 AT&T Internet to obtain the true name and address of the Doe Defendant at IP address 20 108.226.161.139. A copy of this Order must be attached to the subpoena, and any information 21 disclosed to Plaintiff in response to the subpoena may be used by Plaintiff solely for the purpose 22 of serving Defendant and prosecuting the claims asserted in the complaint. 23 It is further ORDERED that AT&T Internet will have 30 days from the date of service 24 upon it to serve the Doe Defendant with a copy of the subpoena and a copy of this Order. 25 It is further ORDERED that the Doe Defendant will have 30 days from the date of service 26 upon him of this Order to file any motions contesting the subpoena with this Court. If that 30-day 27 period lapses without the Doe Defendant contesting the subpoena, AT&T Internet shall produce 1 It is further ORDERED that Plaintiff shall not publicly disclose any of the Doe 2 || Defendant’s identifying information until he has had the opportunity to file a motion with this 3 Court for leave to proceed anonymously and that motion is ruled on by the Court. The Doe 4 || Defendant will have 30 days from the date of service upon him to file such a motion, and he may 5 file the motion under seal. 6 This order disposes of Docket No. 8. 7 8 IT IS SO ORDERED. 9 10 Dated: November 10, 2023 i LL a (12 i Le EDWARD M. CHEN 13 United States District Judge

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