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.: 3:24-cv-00161-JES-VET

12 Plaintiff, ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO 13 v. SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 14 JOHN DOE subscriber assigned IP 26(f) CONFERENCE address 68.7.167.11, 15 [Doc. No. 4] Defendant. 16 17 18 Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Plaintiff”) Ex Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference 20 (“Application”). Doc. No. 4. No defendant has been named or served, and so no opposition 21 or reply briefs were filed. For the reasons discussed below, the Court GRANTS Plaintiff’s 22 Application. 23 I. BACKGROUND 24 On January 23, 2024, Plaintiff filed a Complaint against Defendant “John Doe,” who 25 is allegedly a subscriber of Cox Communications and assigned Internet Protocol (“IP”) 26 address 68.7.167.11. Doc. No. 1 at ¶ 5. Plaintiff is the owner of numerous adult motion 27 pictures, which Plaintiff distributes through adult websites and DVDs. Id. at ¶¶ 2–3. 28 Plaintiff asserts that Defendant is committing “rampant and wholesale copyright 1 infringement” by downloading, recording, and distributing copies of Plaintiff’s 2 copyrighted motion pictures without authorization, using the BitTorrent file distribution 3 network. Id. at ¶¶ 4, 18–29. 4 In the Application, Plaintiff seeks leave to conduct early discovery prior to the 5 mandated Rule 26(f) conference to learn the Doe defendant’s identity. Doc. No. 4. 6 Specifically, Plaintiff seeks an order permitting it to serve a third-party subpoena under 7 Rule 45 on Cox Communications, the Internet Service Provider (“ISP”) who leased the IP 8 address belonging to Defendant John Doe. Doc. No. 4-1 at 7–8.1 The proposed subpoena 9 would require Cox Communications to supply only “the true name and address of 10 Defendant.” Id. at 8. Additionally, Plaintiff represents to the Court that it will only use this 11 information to prosecute the claims in its Complaint. Id. 12 II. LEGAL STANDARD 13 A party is generally not permitted to obtain discovery without a court order before 14 the parties have conferred pursuant to Rule 26(f). Fed. R. Civ. P. 26(d)(1). “However, 15 situations arise, such as the present, where the identity of alleged defendants will not be 16 known prior to the filing of a complaint.” Gillespie v. Civiletti,

(9th Cir. 17 1980). In those circumstances, the Ninth Circuit recognizes that “the plaintiff should be 18 given an opportunity through discovery to identify the unknown defendants, unless it is 19 clear that discovery would not uncover the identities, or that the complaint would be 20 dismissed on other grounds.” Id.; see also Wakefield v. Thompson,

, 1163 21 (9th Cir. 1999) (same). For this reason, courts allow limited discovery after a complaint is 22 filed to permit a plaintiff to learn the identifying information necessary to serve a 23 defendant. See, e.g., Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 24 1999); UMG Recordings, Inc. v. Doe, No. C-08-3999-RMW,

, at *2 25

26 27 1 Due to discrepancies between original and imprinted page numbers, page numbers for docketed materials cited in this Order refer to those imprinted by the Court’s electronic 28 1 (N.D. Cal. Aug. 29, 2008) (noting, in an infringement case, that “a plaintiff cannot have a 2 discovery planning conference with an anonymous defendant[,]” thus, limited expedited 3 discovery would “permit the [plaintiff] to identify John Doe and serve the defendant, 4 permitting this case to go forward”). Further, courts “permit expedited discovery before 5 the Rule 26(f) conference upon a showing of good cause.” Am. LegalNet, Inc. v. Davis, 6

(C.D. Cal. 2009). “Good cause exists where the need for 7 expedited discovery, in consideration of the administration of justice, outweighs the 8 prejudice to the responding party.”

(internal quotations omitted). 9 When considering a request for expedited discovery to uncover the identity of a 10 defendant, the Court applies the following “limiting principles:” (1) “the plaintiff should 11 identify the missing party with sufficient specificity such that the Court can determine that 12 defendant is a real person or entity who could be sued in federal court;” (2) the plaintiff 13 “should identify all previous steps taken to locate the elusive defendant,” confirming that 14 plaintiff made a good faith effort to identify and serve the defendant; and (3) the “plaintiff 15 should establish to the Court’s satisfaction that plaintiff’s suit against defendant could 16 withstand a motion to dismiss.” Columbia Ins., 185 F.R.D. at 578–80. These factors ensure 17 this unusual discovery procedure is employed only “in cases where the plaintiff has in good 18 faith exhausted traditional avenues for identifying a civil defendant pre-service” and 19 “prevent use of this method to harass or intimidate.”

20 III. DISCUSSION 21 Plaintiff contends that there is good cause for this Court to allow expedited 22 discovery. Doc. No. 4-1 at 11–17. For the reasons stated below, the Court agrees. 23 A. Identification of Doe Defendant with Sufficient Specificity 24 Courts in this circuit agree that “a plaintiff identifies Doe defendants with sufficient 25 specificity by providing the unique IP addresses assigned to an individual defendant on the 26 day of the allegedly infringing conduct, and by using ‘geolocation technology’ to trace the 27 IP addresses to a physical point of origin.” See 808 Holdings, LLC v. Collective of 28 December 29, 2011 Sharing Hash, No. 12cv186 MMA-RBB,

, at *4 1 (S.D. Cal. May 4, 2012); OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311-MEJ, 2

, at *2 (N.D. Cal. Oct. 7, 2011) (concluding that plaintiff satisfied the 3 first factor by identifying the defendants’ IP addresses and by tracing the IP addresses to a 4 point of origin within the State of California); Pink Lotus Entm’t, LLC v. Does 1-46, No. 5 C-11-02263,

, at *3 (N.D. Cal. June 21, 2011) (same). Other courts 6 conclude that merely identifying the IP addresses on the day of the alleged infringement 7 satisfies this factor. 808 Holdings,

, at *4 (collecting cases). 8 Here, Plaintiff identified the Doe defendant with sufficient specificity. First, Plaintiff 9 provided a Declaration by David Williamson, an independent contractor hired by Plaintiff 10 as an “Information Systems and Management Consultant.” Ex. A at Doc. No. 4-2 (“Ex. 11 A”). Mr. Williamson “oversaw the design, development, and overall creation of the 12 infringement detection system called VXN Scan[,] which [Plaintiff] both owns and uses to 13 identify the IP addresses used by individuals infringing Plaintiff’s movies via the 14 BitTorrent protocol.” Ex. A at ¶ 40. Mr. Williamson explains VXN Scan in detail, which 15 involves, in part, the development of a proprietary BitTorrent client that emulates the 16 behavior of a standard BitTorrent client by repeatedly downloading data pieces from peers 17 within the BitTorrent network that are distributing Plaintiff’s movies.

at ¶¶ 52–55. 18 Per Mr. Williamson, a separate component of VXN Scan is the PCAP2 Recorder / 19 Capture Card, which allows Plaintiff to “record numerous infringing BitTorrent computer 20 transactions in the form of PCAPs.”

at ¶¶ 57–59. The PCAPs show “particular IP 21 addresses connecting to the Proprietary Client and sending pieces of a computer file (which 22 contains an infringing copy of Plaintiff’s works) to the Proprietary Client through the 23 BitTorrent network. Id.; see also Declaration of Patrick Paige, Doc. No. 4-2, Ex. B at ¶ 14 24 (explaining that “PCAP is a computer file containing captured or recorded data transmitted 25 between network devices;” “it is a recording of network traffic”). Not only does a PCAP 26 27 28 2 1 contain the IP addresses used in the network transaction, it also records the port number 2 and BitTorrent client used to accomplish each transaction, and the “Info Hash value used 3 to obtain the transacted piece,” which in turn, “identifies the data that was shared in the 4 recorded transaction.” Ex. A at ¶¶ 61–62. The PCAP Capture Card records perfect copies 5 of every network packet received by the Proprietary Client. Id. at ¶ 65. Although this Order 6 touches only on two of the components of VXN Scan, Mr. Williamson’s 82-paragraph 7 Declaration sets forth additional in-depth details of all five components of the system, 8 providing a thorough explanation of how the system reliably pinpoints the IP addresses 9 used by individuals infringing Plaintiff’s movies and verifies the infringement. 10 Second, Plaintiff also provided a declaration by Patrick Paige, a computer forensics 11 expert retained by Plaintiff to analyze and retain forensic evidence captured by VXN Scan. 12 Ex. B at Doc. No. 4-2 (“Ex. B”). Mr. Paige “received a PCAP from Strike 3 containing 13 information relating to a transaction initiated on 01/17/2024 13:38:30 UTC involving IP 14 address 68.7.167.11.” Id. at ¶ 16. Based on his review, Mr. Paige confirms that the “PCAP 15 is evidence of a recorded transaction with IP address 68.7.167.11 initiated at 01/17/2024 16 13:38:30 UTC” and “shows that within that transaction, IP address 68.7.167.11 17 uploaded a piece or pieces of a file corresponding to hash value 18 8A94AD218EAC43ED445258801F00CF5ABBCC946C to VXN Scan,” i.e., a hash value 19 that is unique to one of Plaintiff’s movies. Id. at ¶¶ 13–19. 20 Third, Plaintiff provided a declaration by Susan Stalzer, Plaintiff’s employee. Ex. C 21 at Doc. No. 4-2 (“Ex. C”). Based on a side-by-side comparison with Plaintiff’s original 22 movies, Ms. Stalzer verifies that each digital file that the Proprietary Client received 23 through its transactions with IP address 68.7.167.11 is a copy of one of Plaintiff’s 24 copyrighted works. Id. at ¶¶ 8–11; see also Doc. No. 1-2 (Exhibit A to the Complaint, 25 listing the hash values of the 25 torrent files received by the Proprietary Client from the IP 26 address 68.7.167.11). 27 Finally, Plaintiff provides a declaration by Emilie Kennedy, Plaintiff’s in-house 28 General Counsel. Ex. D at Doc. No. 4-2 (“Ex. D”). Ms. Kennedy explains that after Plaintiff 1 received infringement data from VXN Scan, identifying IP address 68.7.167.11 as 2 infringing its works, the IP address was automatically input into Maxmind’s Geolocation 3 Database, which first traced the IP address to a location in Lakehead, California. Id. at ¶ 5. 4 Per Ms. Kennedy, Plaintiff subsequently repeated the trace through the Geolocation 5 Database (prior to filing the Complaint and prior to filing her declaration), which ultimately 6 traced the IP address to El Cajon, California, a location within this Court’s jurisdiction. Id. 7 at ¶¶ 6–7; see Doc. No. 4-2 at 32. The Court is satisfied that these multiple geolocation 8 traces over the course of one month support a finding that the Doe defendant is located in 9 this District are reliably accurate. 10 Based on the foregoing, the Court finds that Plaintiff identified the Doe defendant 11 with sufficient specificity and seeks to sue a real person subject to the Court’s jurisdiction. 12 Moreover, by obtaining the identifying information for the IP address at issue, the 13 discovery sought would likely enable Plaintiff to serve the Doe defendant. 14 B. Previous Attempts to Locate the Doe Defendant 15 The Application also describes Plaintiff’s efforts to identify, locate, and serve the 16 Doe defendant. Plaintiff attempted to locate the Doe defendant by searching for the IP 17 address using online search engines and other web search tools. Doc. No. 4-1 at 14. Plaintiff 18 also reviewed numerous sources of authority such as legislative reports, agency websites, 19 informational technology guides, etc. regarding whether it is possible to identify such a 20 defendant by other means, and extensively discussed this issue with its computer 21 investigators and cyber security consultants. Id. Despite these diligent efforts, Plaintiff was 22 unable to identify any means of obtaining the identity of Doe defendant other than through 23 subpoenaing the information from the ISP. Id.; see also Ex. B at ¶ 28. Thus, the Court finds 24 Plaintiff has shown it has made a good-faith effort to identify and locate the Doe defendant 25 before resorting to filing the instant Application. 26 C. Whether Plaintiff’s Complaint Can Withstand a Motion to Dismiss 27 Lastly, to establish that the Complaint could survive a motion to dismiss, Plaintiff 28 must “make some showing that an act giving rise to civil liability actually occurred and 1 that the discovery is aimed at revealing specific identifying features of the person or entity 2 who committed that act.” Columbia Ins.,

; see also Fed. R. Civ. P. 12(b). 3 To present a prima facie case of copyright infringement, Plaintiff must show: (1) ownership 4 of a valid copyright; and (2) that Defendant violated the copyright owner’s exclusive rights 5 under the Copyright Act. Bell v. Wilmott Storage Servs., LLC,

(9th 6 Cir. 2021). A prima facie case of direct copyright infringement must also show causation 7 by the Defendant.

. 8 Here, the Complaint alleges that Plaintiff owns a valid copyright in the works at 9 issue, which are registered with the United States Copyright Office. See Doc. No. 1 at 10 ¶¶ 43, 44, 46.3 Ms. Stalzer attests that she reviewed the files correlating to the hashes 11 identified in Exhibit A to the Complaint and confirmed that they are “identical, strikingly 12 similar or substantially similar” to Strike 3’s original copyrighted Works. Ex. C at ¶¶ 7– 13 11; Doc. No. 1 at ¶¶ 34–35. Plaintiff’s Complaint also alleges Doe defendant used 14 BitTorrent to copy and distribute the copyrighted works without authorization, and that the 15 infringement was continuous and ongoing. Doc. No. 1 at ¶¶ 4, 19–30, 33–36, 45–46. Thus, 16 Plaintiff’s Complaint has stated a claim for copyright infringement against the Doe 17 defendant. Additionally, Plaintiff has alleged sufficient facts to show it could withstand a 18 motion to dismiss for lack of personal jurisdiction or a motion for improper venue because 19 the IP address at issue was traced to a location in this District. Further, Mr. Paige declares 20 that based on his experience in similar cases, the ISP, Cox Communications, is the only 21 entity that can correlate the IP address 68.7.167.11 to its subscriber to pinpoint the Doe 22 defendant’s identity. Ex. B at ¶ 28. 23 24 25 26 3 Exhibit A to the Complaint, which shows the hash values of the purportedly infringing 27 movies downloaded from IP address 68.7.167.11, also contains the United States Copyright Office registration information of the works that correspond with those hash 28 1 Accordingly, coupled with the information provided by Mr. Williamson and 2 Mr. Paige in their respective declarations, the Court is satisfied that Plaintiff’s Complaint 3 would survive a motion to dismiss. 4 IV. CONCLUSION 5 For the reasons set forth above, and for good cause shown, the Court GRANTS 6 Plaintiff’s Application. Doc. No. 4. However, the Court is cognizant of the potential 7 embarrassment of being identified in this type of case and “shares the growing concern 8 about unscrupulous tactics used by certain plaintiffs, especially in the adult film industry, 9 to shake down the owners of IP addresses.” Malibu Media, LLC v. Does 1-5, No. 12-Civ- 10 2950-JPO,

, at *1 (S.D.N.Y. June 1, 2012). Anticipating and sharing 11 these concerns, Plaintiff invites the Court to issue a protective order establishing procedural 12 safeguards if the Court finds such procedures appropriate. Doc. No. 4-1 at 18. Accordingly, 13 the Court ORDERS as follows: 14 1. Plaintiff shall attach a copy of this Order to any Rule 45 subpoena. 15 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to 16 provide Plaintiff with only the true name and address of the subscriber to whom the ISP 17 assigned IP address 68.7.167.11, as set forth on Exhibit A to the Complaint. The ISP is not 18 to release the subscriber’s telephone number or email address. 19 3. Within fourteen (14) calendar days after service of the subpoena, the ISP shall 20 notify the subscriber that his or her identity has been subpoenaed by Plaintiff. The ISP must 21 also provide a copy of this Order along with the required notice to the subscriber whose 22 identity is sought pursuant to this Order. 23 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 24 calendar days from the date of such notice to challenge the disclosure of his or her name 25 and address by filing an appropriate pleading with this Court contesting the subpoena. A 26 subscriber who moves to quash or modify the subpoena may proceed anonymously as 27 “John Doe,” and shall remain anonymous until the Court orders that the identifying 28 information may be released. 1 5. If the ISP wishes to move to quash the subpoena, it shall do so before the 2 ||return date of the subpoena. The return date of the subpoena must allow for at least forty- 3 || five (45) days from service to production. Ifa motion to quash or other challenge is brought, 4 ISP shall preserve the information sought by Plaintiff in the subpoena pending 5 resolution of such motion or challenge. 6 6. Plaintiff may only use the information disclosed in response to a Rule 45 7 ||subpoena served on the ISP for the purpose of protecting and enforcing Plaintiffs rights 8 set forth in its Complaint. If the subscriber wishes to proceed anonymously, Plaintiff 9 ||may not release any identifying information without a court order allowing the release of 10 || the information. 1] IT IS SO ORDERED. 12 Dated: February 20, 2024 13 [wre Honorable Valerie E. Torres 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28