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.: 23-CV-1377-TWR-WVG

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO CONDUCT EXPEDITED 14 JOHN DOE subscriber assigned IP DISCOVERY address 72.220.65.159, 15

Defendant. 16 [Doc. No. 4] 17 18 Pending before the Court is Strike 3 Holding, LLC’s (“Plaintiff’s) Motion for Leave 19 to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (“Motion”). Doc. No. 20 4. In relevant part, Plaintiff moves the Court for an order permitting it to conduct discovery 21 prior to the Rule 26(f) conference and serve a subpoena on third-party Cox 22 Communications (“Cox”) to ascertain the identity of an unknown individual who allegedly 23 has infringed Plaintiff’s copyrights. Having reviewed and considered Plaintiff’s 24 submissions, the Court GRANTS Plaintiff’s request to obtain discovery for the limited 25 purpose of identifying Defendant’s true name and address. The Court elaborates below. 26 Rule 26(d)(1) of the Federal Rules of Civil Procedure bars litigants from engaging 27 in discovery absent a court order prior to the Rule 26(f) conference. Fed. R. Civ. P. 28 26(d)(1). At the same time, Rule 26(d)(1) is not absolute. Courts carve out exceptions for 1 limited discovery where good cause is shown, for example where a plaintiff needs to “learn 2 the identifying facts necessary to permit service on the defendant.” Strike 3 Holdings, LLC 3 v. Doe,

, at *1 (S.D. Cal., Dec. 14, 2017); Criminal Prods., Inc. v. Doe- 4 72.192.163.220,

, at *1 (S.D. Cal. Nov. 18, 2016). To that end, district 5 courts within the Ninth Circuit employ a three-part test to determine whether limited 6 discovery to identify certain defendants is appropriate: whether plaintiff (1) identified the 7 missing party with “sufficient specificity such that the court can determine the defendant 8 is a real person or entity who could be sued in federal court;” (2) has described “all previous 9 steps taken to locate the elusive defendant;” and (3) has “establish[ed] its lawsuit could 10 withstand a motion to dismiss.”

(citing Columbia Ins. Co. v. Seescandy.com, 185

, 578–80 (N.D. Cal., Mar. 8, 1999)). 12 Here, Plaintiff has made the requisite showing of good cause by (1) taking steps to 13 identify Defendant’s internet protocol (“I.P.”) address; and (2) employing informal 14 discovery methods involving internet research and consulting with computer investigators 15 and cyber security experts to discover Defendant’s true name and address without judicial 16 intervention. Doc. No. 4-2, ¶¶16–26. See Holdings, LLC, v. Collective of Dec. 29, 2011, 17 Sharing Hash,

at *4 (S.D. Cal. May 4, 2012). Further, Plaintiff sets 18 forth sufficient factual allegations as to each of the elements of direct copyright 19 infringement and shows the Complaint could withstand a motion to dismiss if one were 20 brought. Specifically, Plaintiff pleads (1) it is the owner of a valid copyrighted work; (2) 21 Defendant downloaded and distributed Plaintiff’s files; (3) Plaintiff did not consent to 22 Defendant’s downloads or distribution of its files; and (4) Defendant “triggered a cascade 23 of technical operations, making Defendant the proximate cause of all of the violations of 24 Plaintiff’s copyrights.” Doc. No. 4-1, 16:25–27. Finally, Plaintiff’s Motion demonstrates 25 a reasonable likelihood Plaintiff will be able to identify Defendant’s true name and address 26 through a Rule 45 subpoena.

17:11–22. For these reasons, the Court finds good cause 27 exists to grant Plaintiff’s Motion, consistent with certain procedural safeguards, set forth 28 immediately below. 1 Within ten (10) days of issuance of this Order, Plaintiff shall serve a subpoena 2 pursuant to Rule 45 upon Cox that seeks to obtain Defendant John Doe’s true name and 3 ||address. No other information may be solicited through the subpoena. To that end, 4 || Plaintiff shall not use the disclosed information for any other purpose except to protect its 5 rights through this litigation. Further, the return date of the subpoena shall allow for at 6 || least forty-five (45) days from service to production. 7 Next, within fourteen (14) calendar days of service of the subpoena, Cox shall notify 8 || Defendant John Doe of the subpoena as served by Plaintiff and its contents. Should Cox 9 to quash the subpoena, it shall do so before the return date of 10 || the subpoena. 11 Finally, from the date of Cox’s notice of subpoena to Defendant John Doe, 12 || Defendant John Doe shall have thirty (30) calendar days to oppose the disclosure of his/her 13 name and/or address by filing an appropriate pleading with this Court. 14 |/Plaintiff shall serve a copy of this Court’s Order with any subpoena served 15 ||pursuant to this Order to Cox. Cox shall then provide a copy of this 16 || Order to Defendant John Doe concurrent with its notice of Plaintiff's Rule 45 subpoena to 17 || Defendant John Doe. 18 IT IS SO ORDERED. 19 |lDated: August 11, 2023 | | Se 20 >] Hon. William V. Gallo United States Magistrate Judge 22 23 24 25 26 27 28