1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 STRIKE 3 HOLDINGS, LLC, Case No.: 25-cv-1657-H-MMP

13 Plaintiff, ORDER GRANTING PLAINTIFF’S 14 EX-PARTE APPLICATION FOR v. LEAVE TO SERVE A THIRD- 15 PARTY SUBPOENA PRIOR TO A 16 JOHN DOE, subscriber assigned IP RULE 26(f) CONFERENCE address 108.90.231.195, 17

[ECF No. 4] 18 Defendant. 19 20

21 On July 29, 2025, Strike 3 Holdings, LLC’s (“Strike 3”) filed an Ex-Parte 22 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference 23 (“Application”). ECF No. 4. Defendant John Doe (“Defendant”) has not been identified; 24 thus, no opposition has been filed. For the reasons discussed below, the Court GRANTS 25 Strike 3’s ex parte Application. 26 I. PROCEDURAL HISTORY 27 On June 27, 2025, Strike 3 filed a Complaint against Defendant, allegedly a 28 subscriber of Internet Service Provider (“ISP”) AT&T Internet and assigned Internet 1 Protocol (“IP”) address 108.90.231.195. ECF No. 1. Strike 3 alleges direct copyright 2 infringement against Defendant. Strike 3 asserts it is the registered copyright holder of 3 certain copyrighted works alleged to have been infringed by Defendant. Strike 3 contends 4 Defendant used the BitTorrent file distribution network to copy and distribute Strike 3’s 5 copyrighted works through the Internet without Strike 3’s permission. ECF Nos. 1, 4. 6 Strike 3 seeks leave to conduct early discovery to learn the identity of the subscriber 7 of the subject IP address from AT&T Internet who leased the IP address to its subscriber 8 during the relevant period. Defendant’s identity is known to Strike 3 only by Defendant’s 9 IP address, which was obtained through the use of forensic software. Using geolocation 10 technology, Strike 3 has identified AT&T Internet as the ISP that owns the subject IP 11 address. Strike 3 seeks an order permitting it to serve a third-party subpoena, pursuant to 12 Federal Rule of Civil Procedure (“Rule”) 45, on AT&T Internet, requiring the ISP to supply 13 the name and address of its subscriber to Strike 3. 14 II. LEGAL STANDARD 15 Generally, formal discovery is only permitted after parties have conferred as 16 pursuant to Rule 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts have 17 made exceptions, permitting limited discovery to ensue after filing of the complaint to 18 permit the plaintiff to learn the identifying facts necessary to permit service on the 19 defendant.” Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 1999) 20 (citing Gillespie v. Civiletti,

, 642 (9th Cir. 1980)). Courts authorize such 21 “expedited discovery” where the need for the information “outweighs the prejudice to the 22 responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc.,

(N.D.

) (applying “the conventional standard of good cause in evaluating Plaintiff’s 24 request for expedited discovery”). “A district court’s decision to grant discovery to 25 determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co.,

578 (citation omitted). 27 The Ninth Circuit has held when the defendant’s identity is unknown at the time the 28 complaint is filed, a court may grant leave to take early discovery to determine the 1 defendant’s identity “unless it is clear that discovery would not uncover the identit[y], or 2 that the complaint would be dismissed on other grounds.” Gillespie, 629 F.2d at 642. “[T]o 3 prevent abuse of this extraordinary application of the discovery process and to ensure that 4 [the] plaintiff has standing to pursue an action against [the] defendant,” the applicant must 5 “make some showing that an act giving rise to civil liability actually occurred and that the 6 discovery is aimed at . . . identifying . . . the person or entity who committed that act.” 7 Columbia Ins. Co., 185 F.R.D. at 579–80. To determine good cause and satisfy these 8 requirements, district courts have applied a three-factor test: (1) “plaintiff should identify 9 the missing party with sufficient specificity such that the Court can determine that 10 defendant is a real person or entity who could be sued in federal court”; (2) plaintiff “should 11 identify all previous steps taken to locate the elusive defendant” to ensure that plaintiff has 12 made a good faith effort to identify and serve process on the defendant; and (3) plaintiff 13 should establish that its lawsuit “could withstand a motion to dismiss.” Id. at 578–80. 14 Further, the plaintiff must demonstrate a reasonable likelihood that the requested discovery 15 will yield information about Defendant to make service of process possible. Id. at 580. 16 III. ANALYSIS 17 A. Identification of Missing Parties with Sufficient Specificity 18 A plaintiff can satisfy its burden of identifying the missing party with specificity “by 19 providing the unique IP addresses assigned to an individual defendant on the day of the 20 allegedly infringing conduct, and by using ‘geolocation technology’ to trace the IP 21 addresses to a physical point of origin.” 808 Holdings, LLC v. Collective of Dec. 29, 2011 22 Sharing Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12-cv-00186- 23 MMA-RBB,

, at *4 (S.D. Cal. May 8, 2012) (citing OpenMind Sols., 24 Inc. v. Does 1–39, No. 11-cv-3311-MEJ,

, at *2 (N.D. Cal. Oct. 7, 2011); 25 Pink Lotus Ent., LLC v. Does 1-46, No. 11-cv-02263-HRL,

, at *3 (N.D. 26 Cal. June 21, 2011)). 27 Strike 3 provided declarations, explaining its infringement detection system, VXN 28 Scan, identified IP addresses, including 108.90.231.195, used by individuals infringing 1 Strike 3’s films via BitTorrent protocol. ECF No. 4-2 at 19–22 ¶¶ 12–28. Furthermore, 2 Strike 3 contends the operations of BitTorrent require human interaction, demonstrating 3 Defendant is a real person or entity. ECF No. 4-1 at 11–12. Strike 3 used geolocation 4 technology to trace the identified IP address to an address in San Diego, California. ECF 5 No. 4-2 at 29 ¶¶ 5–7. The Court finds Strike 3 has established Defendant is likely a real 6 person or entity located within the Southern District of California. 7 B. Attempts to Locate Defendant 8 Strike 3 maintains it attempted to “correlate” Defendant’s IP address to Defendant 9 by using web search tools, conducted research on other methods of identifying and locating 10 Defendant, and consulted with computer investigators and cyber security consultants. ECF 11 No. 4-1 at 14. Despite these efforts, Strike 3 has been unable to identify Defendant and 12 represents it cannot do so without the requested discovery.

at 7–8, 14. Accordingly, the 13 Court finds Strike 3 has made a good-faith effort to identify and locate Defendant before 14 filing the instant application. 15 C. Ability to Withstand a Motion to Dismiss 16 To prove a claim of copyright infringement, Strike 3 must show (1) ownership of a 17 valid copyright and (2) Defendant violated the copyright owner’s exclusive rights under 18 the Copyright Act. See Cobbler Nevada, LLC v. Gonzales,

(9th Cir. 19 2018) (citation and quotation marks omitted). Strike 3’s Complaint alleges a single cause 20 of action against Defendant for direct copyright infringement. ECF No. 1 at 8–9. Strike 3 21 alleges it owns the subject intellectual property, which Defendant copied and distributed 22 using the identified IP address without Strike 3’s authorization, permission, or consent.

23 ¶¶ 52–54. Accordingly, Strike 3 has alleged facts that could establish the prima facie 24 elements of direct copyright infringement. 25 Strike 3 also bears the burden of establishing jurisdictional facts. See Columbia Ins. 26 Co.,

(citation omitted). As noted, using geolocation technology, Strike 27 3 traced Defendant’s IP address to a point of origin within this District before filing its 28 Complaint and again before filing the instant ex parte Application. ECF No. 4-2 at 29 ¶¶ 1 4–7. The Court therefore finds Strike 3 has alleged enough facts to show it can likely 2 withstand a motion to dismiss for lack of personal jurisdiction. 3 For the same reason, venue appears proper. Civil actions for copyright infringement 4 “may be instituted in the district in which the defendant or his agent resides or may be 5 found.”

(a). Strike 3 alleges Defendant committed the alleged acts of 6 infringement in this District. ECF No. 1 ¶¶ 7–10. The Court finds the Complaint could 7 likely withstand a motion to dismiss for improper venue. 8 D. Whether Requested Discovery Will Lead to Identifying Information 9 Strike 3 maintains AT&T Internet is the only entity that may correlate Defendant’s 10 IP address to the IP address owner’s true identity. ECF No. 4-1 at 17; ECF No. 4-2 at 22 ¶ 11 28. Therefore, AT&T Internet providing Strike 3 with Defendant’s name and address will 12 likely lead to information making it possible to effectuate service on Defendant. 13 IV. CONCLUSION 14 For the foregoing reasons, the Court finds good cause and GRANTS Strike 3’s ex 15 parte Application and ORDERS the following: 16 1. Strike 3 may serve a subpoena pursuant to Federal Rule of Civil Procedure 45 17 on the ISP that seeks only the true name and address of the subscriber assigned IP address 18 108.90.231.195 for the relevant time. 19 2. If the ISP wishes to move to quash the subpoena, it shall do so before the 20 return date of the subpoena. The return date of the subpoena must allow for at least forty- 21 five (45) days from service to production. If a motion to quash or other customer challenge 22 is brought, the ISP shall preserve the information sought by Strike 3 in the subpoena 23 pending resolution of such motion or challenge. 24 3. The ISP must notify its subscriber, no later than fourteen (14) calendar days 25 after service of the subpoena, that his or her identity has been subpoenaed by Strike 3. The 26 subscriber whose identity has been subpoenaed will have thirty (30) calendar days from 27 the date of the notice to seek a protective order, to move to quash or modify the subpoena, 28 or file any other responsive pleading. 1 4. Strike 3 must serve a copy of this Order with the subpoena upon the ISP. The 2 ||ISP, in turn, must provide a copy of this Order along with the required notice to the 3 || subscriber whose identity is sought pursuant to this Order. 4 5. Strike 3 may use the information disclosed pursuant to the subpoena only in 5 || pursuing this litigation. 6 6. No other discovery is authorized at this time. 7 IT IS SO ORDERED. 8 ||Dated: July 31, 2025 Wid, glo. te 9 HON. MICHELLE M. PETTIT 10 United States Magistrate Judge

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