2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 25cv1465-LL (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 70.95.112.68, 15 [ECF NO. 4] Defendant. 16 17 18 On June 20, 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”) Spectrum for “limited, immediate discovery . . . so that 22 Plaintiff may learn Defendant’s identity, further investigate Defendant’s role in the 23 infringement, and effectuate service.” (ECF No. 4-1 at 7.) Because Defendant has not 24 been identified, no opposition or reply briefs have been filed. For the following reasons, 25 the Ex Parte Application is GRANTED. 26 / / 27 / / 2 Plaintiff owns the copyright to certain motion pictures. (ECF No. 4-1 at 7.) On 3 June 6, 2025, Plaintiff filed a Complaint alleging that Defendant John Doe, an internet 4 subscriber assigned Internet Protocol (“IP”) address 70.95.112.68, has been using the 5 BitTorrent protocol to commit “rampant and wholesale copyright infringement” by 6 downloading and distributing twenty-five movies over an extended period. (ECF No. 1 7 at 2.) Plaintiff alleges it used its proprietary forensic software, VXN Scan, to discover 8 that Defendant’s IP address was illegally distributing Plaintiff’s copyrighted motion 9 pictures. (ECF No. 4-1 at 7; ECF No. 4-2 at 19.) 10 On June 20, 2025, Plaintiff filed the instant Ex Parte Application seeking leave to 11 serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s ISP, 12 Spectrum. (ECF No. 4-1 at 8, 18.) Plaintiff maintains that the Rule 45 subpoena “will 13 only demand the true name and address of Defendant[,]” and “Plaintiff will only use this 14 information to prosecute the claims made in its Complaint.” (Id. at 8.) Plaintiff further 15 claims that “[w]ithout this information, Plaintiff cannot serve Defendant nor pursue this 16 lawsuit and protect its copyrights.” (Id.) 17 II. LEGAL STANDARD 18 Generally, formal discovery is not permitted before the parties have conferred 19 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Courts, 20 however, have made exceptions “in rare cases . . . permitting limited discovery to ensue 21 after filing of the complaint to permit the plaintiff to learn the identifying facts 22 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 24 apply a “good cause” standard to decide whether to permit early discovery. Semitool, 25 Inc. v. Tokyo Electron Am., Inc.,

, 275–76 (N.D. Cal. 2002). “Good cause” 26 is established “where the need for expedited discovery, in consideration of the

27 administration of justice, outweighs the prejudice to the responding party.”

. 2 filed, courts may grant plaintiffs leave to take early discovery to determine the 3 defendants’ identities ‘unless it is clear that discovery would not uncover the identities, 4 or that the complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 5 Collective of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C 6 D63C23C91, No. 12cv186-MMA (RBB),

, at *3 (S.D. Cal. May 8, 2012) 7 (quoting Gillespie v. Civiletti,

(9th Cir. 1980)). “A district court’s 8 decision to grant discovery to determine jurisdictional facts is a matter of discretion.” 9 Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 10

, 430 n. 24 (9th Cir. 1977)). 11 District Courts in the Ninth Circuit typically apply a three-factor test when 12 considering motions for early discovery to identify Doe defendants.

at 578–80. First, 13 the moving party should be able to “identify the missing party with sufficient specificity 14 such that the Court can determine that defendant is a real person or entity who could 15 be sued in federal court.” Id. at 578. Second, the movant “should identify all previous 16 steps taken to locate the elusive defendant” to ensure “that [the movant has made] a 17 good faith effort to comply with the requirements of service of process and specifically 18 identifying defendants.” Id. at 579. Third, the plaintiff “should establish to the Court’s 19 satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss.” 20 Id.; see also Gillespie,

(stating early discovery to identify unknown 21 defendants should be permitted unless the complaint would be dismissed on other 22 grounds). 23 In addition to satisfying all three factors, plaintiff should provide “reasons 24 justifying the specific discovery requested [and] identification of a limited number of 25 persons or entities on whom discovery process might be served and for which there is a 26 reasonable likelihood that the discovery process will lead to identifying information

27 about defendant that would make service of process possible.” Columbia Ins. Co., 185 2 are intended to ensure that early discovery “will only be employed in cases where the 3 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 4 pre-service, and will prevent use of this method to harass or intimidate.” Columbia Ins. 5 Co., 185 F.R.D. at 578. 6 III. ANALYSIS 7 Plaintiff seeks leave to serve a subpoena pursuant to Federal Rule of Civil 8 Procedure 45 on Defendant’s ISP, Spectrum. (ECF No. 4-1 at 7–8.) The Cable Privacy Act 9 generally prohibits a cable operator from disclosing “personally identifiable information 10 concerning any subscriber without the prior written or electronic consent of the 11 subscriber concerned.”

(c)(1). A cable operator, however, may disclose 12 the information if the disclosure is made pursuant to a court order and the cable 13 operator notifies the subscriber of the order.

(c)(2)(B). A cable operator 14 is “any person or group of persons . . . who provides cable service over a cable system 15 and directly or through one or more affiliates owns a significant interest in such cable 16 system,” or “otherwise controls or is responsible for, through any arrangement, the 17 management and operation of such a cable system.”

(5). 18 Spectrum is a cable operator, and the information Plaintiff seeks falls within the 19 exception to the Cable Privacy Act’s disclosure prohibition. See

(c)(2)(B). 20 Accordingly, if Plaintiff satisfies the multi-factor test used by district courts to determine 21 whether early discovery is warranted, Defendant’s ISP may disclose the requested 22 information pursuant to this Court’s order. 23 A. Plaintiff Has Identified Defendant with Sufficient Specificity 24 Plaintiff must identify Defendant with enough specificity to allow the Court to 25 determine that Defendant is a real person or entity, subject to the jurisdiction of this 26 Court. See Columbia Ins. Co., 185 F.R.D. at 578. “[A] plaintiff identifies Doe defendants

27 with sufficient specificity by providing the unique IP addresses assigned to an individual 2

, at *4 (internal citations omitted). 3 In support of its Ex Parte Application, Plaintiff submitted the Declaration of Jorge 4 Arco, Senior Developer for Plaintiff’s parent company, General Media Systems, LLC. 5 (See ECF No. 4-2 at 3.) Mr. Arco uses Plaintiff’s infringement detection system, VXN 6 Scan, to identify the IP addresses used by individuals infringing Plaintiff’s movies 7 through the BitTorrent protocol. (Id. at 9.) Further, although the BitTorrent protocol 8 contains some default and automatic functions, the functions that Plaintiff accuses 9 Defendant of using require human operation. See Christopher Civil, Mass Copyright 10 Infringement Litigation: Of Trolls, Pornography, Settlement and Joinder, 30 Syracuse J. 11 Sci. & Tech. L. 2, 12 (2014) (“BitTorrent transfers do not involve a centralized server that 12 hosts or transfers the data files in question. Instead, BitTorrent involves users 13 interacting directly with other users to upload and download the content.”). 14 Accordingly, Plaintiff has established that an actual human was involved in the 15 downloading and sharing of Plaintiff’s allegedly infringed works. 16 Plaintiff also submitted the Declaration of Patrick Paige, a Managing Member at 17 Computer Forensics, LLC, where Mr. Paige contends that he utilized Packet Capture 18 (“PCAP”), “a computer file containing captured or recorded data transmitted between 19 network devices[,]” and VXN Scan to connect Defendant’s IP address to the alleged 20 “piece of an infringing copy of Plaintiff’s works.” (ECF No. 4-2 at 19–20.) According to 21 Mr. Paige, “[t]he PCAP contains a record data concerning that transaction, including, but 22 not limited to, the [IP] Addresses used in the network transaction, the date and time of 23 the network transaction, the port number used to accomplish each network transaction, 24 and the Info Hash value that the VXN Scan used as the subject of its request for data.” 25 (Id. at 20.) Mr. Paige contends that the contents of the PCAP confirm that the infringing 26 activity connected to the IP address 70.95.112.68 was initiated on April 27, 2025, at

27 15:24:03 UTC. (Id.) Mr. Paige concludes that “the PCAP evidence shows that within that 2 correspond with the date and time when one of Plaintiff’s works was allegedly illegally 3 downloaded according to Exhibit A of Plaintiff’s Complaint. (ECF No. 1-2 at 1.) 4 In addition, Plaintiff submitted the Declaration of Emilie Kennedy, Plaintiff’s in- 5 house General Counsel, in which Ms. Kennedy asserts geolocation was done by an 6 unspecified person to identify the location of Defendant on three separate occasions. 7 (ECF No. 4-2 at 29.) First, “[a]fter [Plaintiff] received infringement data from VXN Scan 8 identifying IP address 70.95.112.68 as infringing its works, the IP address was 9 automatically inputted into Maxmind’s Geolocation Database.” (Id.) Based on this 10 search, Ms. Kennedy contends that “Maxmind determined that the IP address traced to 11 a location in San Diego, California, which is within this Court’s jurisdiction.” (Id.) 12 Plaintiff subsequently inputted Defendant’s IP address into Maxmind’s Database prior to 13 filing the Complaint and Ms. Kennedy’s Declaration. (Id.) On both occasions, the IP 14 address linked to Defendant, 70.95.112.68, continued to trace to this District.1 15 Plaintiff has provided sufficient information about infringing activity tied to 16 Defendant’s unique IP address, the specific date and time associated with the activity, 17 and the location of the activity. Therefore, Plaintiff has demonstrated with sufficient 18 specificity that Defendant is a real person or entity, likely subject to the jurisdiction of 19 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 21 threshold is satisfied when the IP address identified by Maxmind geolocation service 22 identifies a physical location within the court’s jurisdiction). 23 B. Plaintiff Made a Good Faith Effort to Identify Defendant 24 Plaintiff must also demonstrate that it has taken previous steps to locate and 25 serve the Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Although Plaintiff 26

27 1 Attached as Exhibit 1 to Ms. Kennedy’s Declaration is a chart reflecting the results of the third and 2 address “on various web search tools, including basic search engines like 3 www.google.com,” Plaintiff does not submit evidence supporting this claim. (ECF No. 4- 4 1 at 14.) However, Ms. Kennedy’s Declaration and the MaxMind results attached as 5 Exhibit 1 indicate that Plaintiff took substantial steps to locate Defendant’s IP address 6 and identify Defendant’s ISP. (ECF No. 4-2 at 29–32.) Despite these efforts, Plaintiff was 7 unable to correlate the IP address to Defendant’s identity. Plaintiff maintains that it has 8 been “unable to identify any other way to go about obtaining the identities of its 9 infringers and does not know how else it could possibly enforce its copyrights from 10 illegal piracy over the Internet.” (ECF No. 4-1 at 14.) The Court therefore finds that 11 Plaintiff has made a good faith effort to identify, locate, and serve the Defendant. See 12 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 14 defendant were sufficient because “there is no other way for [p]laintiff to obtain 15 [d]efendants’ identities, except by serving a subpoena on [d]efendants’ ISPs demanding 16 it[]”); see also Digital Sin, Inc. v. Does 1–5698, No. C 11-04397 LB,

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

27 personal jurisdiction, Plaintiff has alleged facts sufficient to survive a motion to dismiss. 2

(jurisdiction over copyright actions).” (ECF No. 1 at 2; ECF No. 4-1 at 3 15.) On the issue of personal jurisdiction, Plaintiff maintains it used geolocation 4 technology to determine that Defendant’s IP address correlates to a physical address in 5 the Southern District of California. (ECF No. 1 at 2–3; ECF No. 4-1 at 15.) 6 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure 7 tests the sufficiency of the allegations in the Complaint. Navarro v. Block,

, 8 732 (9th Cir. 2001). Plaintiff’s Complaint alleges a single cause of action against 9 Defendant for direct copyright infringement. (ECF No. 1 at 8–10.) To allege a claim for 10 direct copyright infringement, a plaintiff must show: “(1) ownership of a valid copyright; 11 and (2) that the defendant violated the copyright owner’s exclusive rights under the 12 Copyright Act.” Ellison v. Robertson,

(9th Cir. 2004) (internal 13 citations omitted). “In addition, direct infringement requires the plaintiff to show 14 causation (also referred to as ‘volitional conduct’) by the defendant.” Perfect 10, Inc. v. 15 Giganews, Inc.,

(9th Cir. 2017). 16 Plaintiff alleges it owns the copyrights to the works that are the subject of this suit 17 and claims that the works “have been registered with the United States Copyright 18 Office.” (ECF No. 1 at 8.) Plaintiff also alleges that Defendant “downloaded, copied, and 19 distributed Plaintiff’s Works without authorization.” (Id. at 8.) Assuming Plaintiff’s 20 allegations are true, they state a claim on which relief can be granted. See A&M Recs., 21 Inc. v. Napster, Inc.,

, 1013–14 (9th Cir. 2001) (finding plaintiffs sufficiently 22 demonstrated ownership and infringement by showing Napster allowed its users to 23 download copyrighted music, up to seventy percent of which was owned or 24 administered by the plaintiffs); see also Malibu Media, LLC v. Doe, Case No. 16cv1916- 25 GPC (JMA),

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

27 plaintiff owned twelve copyrighted movies at issue, and that defendant infringed 2 alleged the prima facie elements of copyright infringement, and the Complaint will likely 3 withstand a motion to dismiss. 4 D. Whether Requested Discovery Will Lead to Identifying Information 5 Finally, Plaintiff is required to demonstrate that “there is a reasonable likelihood 6 that the discovery process will lead to identifying information about defendant that 7 would make service of process possible.” Columbia Ins. Co., 185 F.R.D. at 580. As 8 discussed above, Plaintiff’s forensic investigation uncovered the unique IP address 9 70.95.112.68. (ECF No. 4-2 at 20.) Further, Exhibit 1 to Ms. Kennedy’s declaration 10 indicates that her MaxMind search revealed that the ISP Spectrum owned Defendant’s 11 IP address at the time of the infringement. (Id. at 32.) Based on his experience in 12 similar cases, Mr. Paige explains that “Spectrum is the only entity that can correlate” 13 Defendant’s IP address to the IP address owner’s identity. (Id. at 22.) Accordingly, if 14 Spectrum provides Plaintiff with Defendant’s name and address, this will likely lead to 15 information making it possible for Plaintiff to effectuate service on Defendant. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court GRANTS the Ex Parte Application for Leave 18 to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 4] as follows: 19 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 20 45 on Spectrum, seeking only the name and address of the subscriber assigned to the IP 21 address 70.95.112.68. Plaintiff may not subpoena additional information about the 22 subscriber; 23 2. Plaintiff may only use the disclosed information to protect its copyrights in 24 the instant litigation; 25 3. Within fourteen (14) calendar days after service of the subpoena, Spectrum 26 shall notify the subscriber assigned the IP address 70.95.112.68 that his, her, or its

27 identity has been subpoenaed by Plaintiff; 1 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 2 calendar days from the date of the notice to challenge the disclosure of his, her, or its 3 ||name and address by filing an appropriate pleading with this Court contesting the 4 || subpoena; 5 5. If Spectrum wishes to move to quash the subpoena, it shall do so before 6 ||the return date of the subpoena. The return date of the subpoena must allow for at 7 || least forty-five (45) days from service to production. If a motion to quash or other 8 || customer challenge is brought, Spectrum shall preserve the information sought by 9 || Plaintiff in the subpoena pending resolution of the motion or challenge; 10 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and 11 served to Spectrum pursuant to this Order; 12 7. Spectrum must provide a copy of this Order along with the required notice 13 || to the subscriber whose identity is sought pursuant to this Order. 14 8. No other discovery is authorized at this time. 15 IT IS SO ORDERED. 16 Dated: July 3, 2025 = _ 2 FF 18 Honorable Michael S. Berg United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28