2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 25cv1137-H (MSB)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 13 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA 14 JOHN DOE subscriber assigned IP address PRIOR TO A RULE 26(f) CONFERENCE 76.249.136.85, 15 [ECF NO. 4] Defendant. 16 17 18 On May 15, 2025, Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed an “Ex-Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference” 20 (“Ex Parte Application”). (ECF No. 4.) Plaintiff seeks to subpoena Defendant John Doe’s 21 Internet Service Provider (“ISP”) AT&T Inc. (“AT&T”) for “limited, immediate discovery . . 22 . so that Plaintiff may learn Defendant’s identity, further investigate Defendant’s role in 23 the infringement, and effectuate service.” (ECF No. 4-1 at 7.) Because Defendant has 24 not been identified, no opposition or reply briefs have been filed. For the following 25 reasons, the Ex Parte Application is GRANTED. 26 I. BACKGROUND 27 Plaintiff owns the copyright to certain motion pictures. (ECF No. 4-1 at 7.) On 2 BitTorrent protocol to commit “rampant and wholesale copyright infringement” by 3 downloading and distributing forty-eight movies over an extended period. (ECF No. 1 at 4 2.) Plaintiff alleges it used its proprietary forensic software, VXN Scan, to discover that 5 Defendant’s IP address was illegally distributing Plaintiff’s copyrighted motion pictures. 6 (ECF No. 4-1 at 7; ECF No. 4-2 at 19.) 7 On May 15, 2025, Plaintiff filed the instant Ex Parte Application seeking leave to 8 serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s ISP, 9 AT&T. (ECF No. 4-1 at 8, 18.) Plaintiff maintains that the Rule 45 subpoena “will only 10 demand the true name and address of Defendant[,]” and “Plaintiff will only use this 11 information to prosecute the claims made in its Complaint.” (Id. at 8.) Plaintiff further 12 claims that “[w]ithout this information, Plaintiff cannot serve Defendant nor pursue this 13 lawsuit and protect its copyrights.” (Id.) 14 II. LEGAL STANDARD 15 Generally, formal discovery is not permitted before the parties have conferred 16 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Courts, 17 however, have made exceptions “in rare cases . . . permitting limited discovery to ensue 18 after filing of the complaint to permit the plaintiff to learn the identifying facts 19 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185

, 577 (N.D. Cal. 1999) (internal citations omitted). Courts in the Ninth Circuit 21 apply a “good cause” standard to decide whether to permit early discovery. Semitool, 22 Inc. v. Tokyo Electron Am., Inc.,

, 275–76 (N.D. Cal. 2002). “Good cause” 23 is established “where the need for expedited discovery, in consideration of the 24 administration of justice, outweighs the prejudice to the responding party.”

. 25 “[W]hen the defendants’ identities are unknown at the time the complaint is 26 filed, courts may grant plaintiffs leave to take early discovery to determine the

27 defendants’ identities ‘unless it is clear that discovery would not uncover the identities, 2 D63C23C91, No. 12cv186-MMA (RBB),

, at *3 (S.D. Cal. May 8, 2012) 3 (quoting Gillespie v. Civiletti,

, 642 (9th Cir. 1980)). “A district court’s 4 decision to grant discovery to determine jurisdictional facts is a matter of discretion.” 5 Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 6

, 430 n. 24 (9th Cir. 1977)). 7 District courts in the Ninth Circuit typically apply a three-factor test when 8 considering motions for early discovery to identify Doe defendants. Id. at 578–80. First, 9 the moving party should be able to “identify the missing party with sufficient specificity 10 such that the Court can determine that defendant is a real person or entity who could 11 be sued in federal court.” Id. at 578. Second, the movant “should identify all previous 12 steps taken to locate the elusive defendant” to ensure “that [the movant has made] a 13 good faith effort to comply with the requirements of service of process and specifically 14 identifying defendants.” Id. at 579. Third, the plaintiff “should establish to the Court’s 15 satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss.” 16 Id.; see also Gillespie, 629 F.2d at 642 (stating early discovery to identify unknown 17 defendants should be permitted unless the complaint would be dismissed on other 18 grounds). 19 In addition to satisfying all three factors, plaintiff should provide “reasons 20 justifying the specific discovery requested [and] identification of a limited number of 21 persons or entities on whom discovery process might be served and for which there is a 22 reasonable likelihood that the discovery process will lead to identifying information 23 about defendant that would make service of process possible.” Columbia Ins. Co., 185 24 F.R.D. at 580; see also Gillespie, 629 F.2d at 642 (explaining that early discovery is 25 precluded if it is not likely to provide the identity of the defendant). These safeguards 26 are intended to ensure that early discovery “will only be employed in cases where the

27 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 2 Co., 185 F.R.D. at 578. 3 III. ANALYSIS 4 Plaintiff seeks leave to serve a subpoena pursuant to Federal Rule of Civil 5 Procedure 45 on Defendant’s ISP, AT&T. (ECF No. 4-1 at 7–8.) The Cable Privacy Act 6 generally prohibits a cable operator from disclosing “personally identifiable information 7 concerning any subscriber without the prior written or electronic consent of the 8 subscriber concerned.”

(c)(1). A cable operator, however, may disclose 9 the information if the disclosure is made pursuant to a court order and the cable 10 operator notifies the subscriber of the order.

(c)(2)(B). A cable operator 11 is “any person or group of persons . . . who provides cable service over a cable system 12 and directly or through one or more affiliates owns a significant interest in such cable 13 system,” or “otherwise controls or is responsible for, through any arrangement, the 14 management and operation of such a cable system.”

(5). 15 AT&T is a cable operator, and the information Plaintiff seeks falls within the 16 exception to the Cable Privacy Act’s disclosure prohibition. See

(c)(2)(B). 17 Accordingly, if Plaintiff satisfies the multi-factor test used by district courts to determine 18 whether early discovery is warranted, Defendant’s ISP may disclose the requested 19 information pursuant to this Court’s order. 20 A. Plaintiff Has Identified Defendant with Sufficient Specificity 21 Plaintiff must identify Defendant with enough specificity to allow the Court to 22 determine that Defendant is a real person or entity, subject to the jurisdiction of this 23 Court. See Columbia Ins. Co., 185 F.R.D. at 578. “[A] plaintiff identifies Doe defendants 24 with sufficient specificity by providing the unique IP addresses assigned to an individual 25 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 26 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC,

27

, at *4 (internal citations omitted). 2 Arco, a Senior Developer for General Media Systems, LLC, the parent company for Strike 3 3. (See ECF No. 4-2 at 3.) Mr. Arco uses Plaintiff’s infringement detection system, VXN 4 Scan, to identify the IP addresses used by individuals infringing Plaintiff’s movies 5 through the BitTorrent protocol. (Id. at 9.) Further, although the BitTorrent protocol 6 contains some default and automatic functions, the functions that Plaintiff accuses 7 Defendant of using require human operation. See Christopher Civil, Mass Copyright 8 Infringement Litigation: Of Trolls, Pornography, Settlement and Joinder, 30 Syracuse J. 9 Sci. & Tech. L. 2, 12 (2014) (“BitTorrent transfers do not involve a centralized server that 10 hosts or transfers the data files in question. Instead, BitTorrent involves users 11 interacting directly with other users to upload and download the content.”). 12 Accordingly, Plaintiff has established that an actual human was involved in the 13 downloading and sharing of Plaintiff’s allegedly infringed works. 14 Plaintiff also submitted the Declaration of Patrick Paige, a Managing Member at 15 Computer Forensics, LLC, where Mr. Paige contends that he utilized Packet Capture 16 (“PCAP”), “a computer file containing captured or recorded data transmitted between 17 network devices[,]” and VXN Scan to connect Defendant’s IP address to the alleged 18 “piece of an infringing copy of Plaintiff’s works.” (ECF No. 4-2 at 18, 20.) According to 19 Mr. Paige, “[t]he PCAP contains a record data concerning that transaction, including, but 20 not limited to, the [IP] Addresses used in the network transaction, the date and time of 21 the network transaction, the port number used to accomplish each network transaction, 22 and the Info Hash value that the VXN Scan used as the subject of its request for data.” 23 (Id. at 20.) Mr. Paige contends that the contents of the PCAP confirm that the infringing 24 activity connected to the IP address 76.249.136.85 was initiated on April 4, 2025, at 25 20:30:22 UTC. (Id.) Mr. Paige concludes that “the PCAP evidence shows that within that 26 transaction, IP address 76.249.136.85 uploaded a piece or pieces of a file corresponding

27 to hash value [representing Plaintiff’s works] to VXN Scan.” (Id.) This date and time 2 downloaded according to Exhibit A of Plaintiff’s Complaint. (ECF No. 1-2 at 1.) 3 In addition, Plaintiff submitted the Declaration of Emilie Kennedy, Plaintiff’s in- 4 house General Counsel, in which Ms. Kennedy asserts geolocation was done by an 5 unspecified person to identify the location of Defendant on three separate occasions. 6 (ECF No. 4-2 at 29.) First, “[a]fter [Plaintiff] received infringement data from VXN Scan 7 identifying IP address 76.249.136.85 as infringing its works, the IP address was 8 automatically inputted into Maxmind’s Geolocation Database.” (Id.) Based on this 9 search, Ms. Kennedy contends that “Maxmind determined that the IP address traced to 10 a location in San Diego, California, which is within this Court’s jurisdiction.” (Id.) 11 Plaintiff subsequently inputted Defendant’s IP address into Maxmind’s Database prior to 12 filing the Complaint and Ms. Kennedy’s Declaration. (Id.) On both occasions, the IP 13 address linked to Defendant, 76.249.136.85, continued to trace to this District.1 14 Plaintiff has provided sufficient information about infringing activity tied to 15 Defendant’s unique IP address, the specific date and time associated with the activity, 16 and the location of the activity. Therefore, Plaintiff has demonstrated with sufficient 17 specificity that Defendant is a real person or entity, likely subject to the jurisdiction of 18 this Court. See Crim. Prods., Inc. v. Doe-72.192.163.220, No. 16cv2589-WQH (JLB), 2016

, at *3 (S.D. Cal. Nov. 18, 2016) (holding that the sufficient specificity 20 threshold is satisfied when the IP address identified by Maxmind geolocation service 21 identifies a physical location within the court’s jurisdiction). 22 B. Plaintiff Made a Good Faith Effort to Identify Defendant 23 Plaintiff must also demonstrate that it has taken previous steps to locate and 24 serve the Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Although Plaintiff 25 maintains it diligently attempted to identify Defendant by searching for Defendant’s IP 26

27 1 Attached as Exhibit 1 to Ms. Kennedy’s Declaration is a chart reflecting the results of the third and 2 www.google.com,” Plaintiff does not submit evidence supporting this claim. (ECF No. 4- 3 1 at 14.) However, Ms. Kennedy’s Declaration and the MaxMind results attached as 4 Exhibit 1 indicate that Plaintiff took substantial steps to locate Defendant’s IP address 5 and identify Defendant’s ISP. (ECF No. 4-2 at 29–32.) Despite these efforts, Plaintiff was 6 unable to correlate the IP address to Defendant’s identity. Plaintiff maintains that it has 7 been “unable to identify any other way to go about obtaining the identities of its 8 infringers and does not know how else it could possibly enforce its copyrights from 9 illegal piracy over the Internet.” (ECF No. 4-1 at 14.) The Court therefore finds that 10 Plaintiff has made a good faith effort to identify, locate, and serve the Defendant. See 11 Malibu Media, LLC v. John Does 1 through 6, No. 12cv1355-LAB (DHB),

4471538, at *3 (S.D. Cal. Sept. 26, 2012) (finding plaintiff’s efforts to identify Doe 13 defendant were sufficient because “there is no other way for [p]laintiff to obtain 14 [d]efendants’ identities, except by serving a subpoena on [d]efendants’ ISPs demanding 15 it[]”); see also Digital Sin, Inc. v. Does 1–5698, No. C 11-04397 LB,

, at 16 *2 (N.D. Cal. Nov. 4, 2011) (finding plaintiff’s attempts to identify and locate defendant 17 sufficient, where the plaintiff “investigated and collected data on unauthorized 18 distribution of copies of the [alleged infringed work] on BitTorrent-based peer-to-peer 19 networks.”). 20 C. Plaintiff’s Suit Could Withstand a Motion to Dismiss 21 Plaintiff must further show that the Complaint in this case could withstand a 22 motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. A suit may be dismissed 23 pursuant to Rule 12(b) on several bases. Of all the bases that bear dismissal, those 24 relevant here are lack of subject matter jurisdiction, lack of personal jurisdiction, and 25 failure to state a claim. Fed. R. Civ. P. 12(b)(1), (2), (6). As to both subject matter and 26 personal jurisdiction, Plaintiff has alleged facts sufficient to survive a motion to dismiss.

27 For subject matter jurisdiction, Plaintiff’s Complaint alleges that “[t]his Court has subject 2 15.) On the issue of personal jurisdiction, Plaintiff maintains it used geolocation 3 technology to determine that Defendant’s IP address correlates to a physical address in 4 the Southern District of California. (ECF No. 1 at 2–3; ECF No. 4-1 at 15.) 5 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure 6 tests the sufficiency of the allegations in the Complaint. Navarro v. Block,

, 7 732 (9th Cir. 2001). Plaintiff’s Complaint alleges a single cause of action against 8 Defendant for direct copyright infringement. (ECF No. 1 at 8–10.) To allege a claim for 9 direct copyright infringement, a plaintiff must show: “(1) ownership of a valid copyright; 10 and (2) that the defendant violated the copyright owner’s exclusive rights under the 11 Copyright Act.” Ellison v. Robertson,

(9th Cir. 2004) (internal 12 citations omitted). “In addition, direct infringement requires the plaintiff to show 13 causation (also referred to as ‘volitional conduct’) by the defendant.” Perfect 10, Inc. v. 14 Giganews, Inc.,

(9th Cir. 2017). 15 Plaintiff alleges it owns the copyrights to the works that are the subject of this suit 16 and claims that the works “have been registered with the United States Copyright 17 Office.” (ECF No. 1 at 8.) Plaintiff also alleges that Defendant “downloaded, copied, and 18 distributed Plaintiff’s Works without authorization.” (Id. at 8.) Assuming Plaintiff’s 19 allegations are true, they state a claim on which relief can be granted. See A&M Recs., 20 Inc. v. Napster, Inc.,

, 1013–14 (9th Cir. 2001) (finding plaintiffs sufficiently 21 demonstrated ownership and infringement by showing Napster allowed its users to 22 download copyrighted music, up to seventy percent of which was owned or 23 administered by the plaintiffs); see also Malibu Media, LLC v. Doe, Case No. 16cv1916- 24 GPC (JMA),

, at *2 (S.D. Cal. Oct. 25, 2016) (holding that plaintiff 25 alleged a prima facie case of copyright infringement against defendant by alleging that 26 plaintiff owned twelve copyrighted movies at issue, and that defendant infringed

27 plaintiff’s copyrights by copying and distributing plaintiff’s movies through the 2 withstand a motion to dismiss. 3 D. Whether Requested Discovery Will Lead to Identifying Information 4 Finally, Plaintiff is required to demonstrate that “there is a reasonable likelihood 5 that the discovery process will lead to identifying information about defendant that 6 would make service of process possible.” Columbia Ins. Co., 185 F.R.D. at 580. As 7 discussed above, Plaintiff’s forensic investigation uncovered the unique IP address 8 76.249.136.85. (ECF No. 4-2 at 20.) Further, Exhibit 1 to Ms. Kennedy’s declaration 9 indicates that her MaxMind search revealed that the ISP AT&T owned Defendant’s IP 10 address at the time of the infringement. (Id. at 32.) Based on his experience in similar 11 cases, Mr. Paige explains that “AT&T Internet is the only entity that can correlate” 12 Defendant’s IP address to the IP address owner’s identity. (Id. at 22.) Accordingly, if 13 AT&T provides Plaintiff with Defendant’s name and address, this will likely lead to 14 information making it possible for Plaintiff to effectuate service on Defendant. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court GRANTS the Ex Parte Application for Leave 17 to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 4] as follows: 18 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 19 45 on AT&T, seeking only the name and address of the subscriber assigned to the IP 20 address 76.249.136.85. Plaintiff may not subpoena additional information about the 21 subscriber; 22 2. Plaintiff may only use the disclosed information to protect its copyrights in 23 the instant litigation; 24 3. Within fourteen (14) calendar days after service of the subpoena, AT&T 25 shall notify the subscriber assigned the IP address 76.249.136.85 that his, her, or its 26 identity has been subpoenaed by Plaintiff;

27 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 1 ||name and address by filing an appropriate pleading with this Court contesting the 2 || subpoena; 3 5. If AT&T wishes to move to quash the subpoena, it shall do so before the 4 ||return date of the subpoena. The return date of the subpoena must allow for at least 5 || forty-five (45) days from service to production. If a motion to quash or other customer 6 || challenge is brought, AT&T shall preserve the information sought by Plaintiff in the 7 ||subpoena pending resolution of the motion or challenge; 8 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and 9 served to AT&T pursuant to this Order; 10 7. AT&T must provide a copy of this Order along with the required notice to 11 || the subscriber whose identity is sought pursuant to this Order. 12 8. No other discovery is authorized at this time. 13 IT IS SO ORDERED. 14 || Dated: June 9, 2025 _ = 1 _ 2 FF 16 Honorable Michael S. Berg United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28