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LLC v. Doe

United States District Court, S.D. California

May 3, 2018

STRIKE 3 HOLDINGS, LLC, Plaintiff,
v.
JOHN DOE subscriber assigned IP address 107.135.66.151, Defendant.

          ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE [DOC. NO. 5]

          HON KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE.

         Before the Court is plaintiffs Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. [Doc. No. 5.] No opposition or reply briefs have been filed or considered by the Court, because defendant has not been fully identified and has not been served with a summons or the Complaint. Thus far, defendant has only been identified as the "subscriber assigned IP address 107.135.66.151." [Doc. No. 1.] For the reasons discussed below, the Court finds that plaintiffs Ex Parte Application must be GRANTED.

         Background

         Plaintiff filed a Complaint against defendant alleging a single cause of action for direct copyright infringement. [Doc. No. 1, at pp. 6-7]. In the Complaint, plaintiff asserts ownership of copyrights for adult motion pictures that are distributed through adult websites. [Doc. No. 1, at p. 1, 6.] The Complaint alleges that the defendant, who is only identified thus far as IP address 107.135.66.151. used the BitTorrent file distribution network to copy and distribute plaintiffs copyrighted works over the Internet without plaintiffs permission. [Doc. No. 1, at pp. 2-5.] The Complaint further alleges that defendant "downloaded, copied, and distributed a complete copy" of plaintiffs copyrighted movies "without authorization." [Doc. No. 1, at p. 5.] According to the Complaint, defendant's "infringement is continuous and ongoing" and the lawsuit is the only way to effectively prevent defendant from infringing the copyrights. [Doc. No. 1, at p. 6.]

         The Complaint explains that "BitTorrent is a system designed to quickly distribute large files over the Internet Instead of downloading a file, such as a movie, from a single source, BitTorrent users are able to connect to the computers of other BitTorrent users in order to simultaneously download and upload pieces of the film from and to other users." [Doc. No. 1, at p. 4.] "To use BitTorrent to download a movie, the user has to obtain a 'torrent5 file for that movie, from a torrent website. The torrent file contains instructions for identifying the Internet addresses of other BitTorrent users who have the movie, and for downloading the movie from those users. Once a user downloads all of the pieces of that movie from the other BitTorrent users, the movie is automatically reassembled into its original form, ready for playing." [Doc. No. 1, at p. 4.]

         Discussion

         In the Ex Parte Application, plaintiff seeks leave to serve limited, immediate discovery on defendant's Internet Service Provider ("ISP"), AT&T Inc. (AT&T U-verse), so that plaintiff may learn defendant's true identity. [Doc. No. 5, at p. 7]. Specifically, plaintiff seeks an order permitting it to serve a Rule 45 subpoena on AT&T Inc. (AT&T U-verse) to obtain the name and address of the account holder assigned to Internet Protocol ("IP") address 107.135.66.151. [Doc. No. 5, at p. 7.]

         Generally, discovery is not permitted without a court order before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed.R.Civ.P. 26(d)(1). In the Ninth Circuit, exceptions to requests for early discovery have generally been disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, "situations arise, such as the present, where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Id.

         "[S]ome limiting principals should apply to the determination of whether discovery to uncover the identity of a defendant is warranted." Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). Such early discovery should be limited "to ensure that this unusual procedure will only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service" and to "prevent use of this method to harass or intimidate." Id. "First, the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court." Id. Second, the plaintiff "should identify all previous steps taken to locate the elusive defendant" to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 579. Third, the "plaintiff should establish to the Court's satisfaction that plaintiffs suit against defendant could withstand a motion to dismiss." Id. "Thus, plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed that act." Id. at 580.

         "Lastly, the plaintiff should file a request for discovery with the Court, along with a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about defendant that would make service of process possible." Id.

         A. Identification of the Defendant with Sufficient Specificity.

         In support of the Ex Parte Application, plaintiff submitted two relevant declarations. First, a Declaration by Tobias Fieser states that he is employed by IPP International UG (IPP), a forensic investigation corporation that provides services to copyright owners by tracking, monitoring, and detecting copyright infringement over the internet. According to Mr. Fieser, IPP monitors the BitTorrent file distribution network for the presence of plaintiffs copyrighted works. [Doc. No. 5-2, at p. 2.] Based on his review of forensic activity records and other forensic evidence, Mr. Fieser states that he was able to determine that defendant's IP address was used to distribute "multiple pieces" of plaintiffs copyrighted movies. [Doc. No. 5-2, at pp. 2-3.] Each of these pieces was recorded in digital files that are identified by a "Crypotographic Hash Value." [Doc. No. 5-2, at pp. 2-3.] Software was then used to re-assemble and analyze the digital files to confirm that the files being distributed by defendant's IP address were pieces of plaintiffs copyrighted movies. [Doc. No. 5-2, at p. 3.] According to Mr. Fieser's Declaration, Exhibit A to the Complaint lists digital files of plaintiff s copyrighted works that were distributed using the defendant's IP address. [Doc. No. 5-2, at p. 2.] It appears that Exhibit A also lists the dates these digital files were distributed using the defendant's IP address and indicates that the defendant's IP address is located in San Marcos, California. [Doc. No. 1-2, at pp. 1-2.]

         Second, a Declaration by Susan B. Stalzer states that she is plaintiffs employee and is familiar with plaintiffs copyrighted movies. She was charged with reviewing the digital files enumerated on Exhibit A that were collected by IPP during its forensic investigation to verify that the files did indeed contain plaintiffs copyrighted movies. Following this verification process, she used the American Registry for Internet Numbers (ARIN) to confirm that defendant's IP address is associated with AT&T U-verse. [Doc. No. 5-3, at Third, the Complaint alleges that geolocation technology by Maxmind Inc., "an industry-leading provider of IP address intelligence and online fraud detection tools, " was used to determine that "defendant's IP address traced to a physical address in this District." [Doc. No. 1, at p. 2.] "Some district courts in the Ninth Circuit have determined that a plaintiff identifies Doe defendants with sufficient specificity by providing the unique IP address assigned to an individual defendant on the day of the alleged infringing conduct, and by using 'geolocation technology' to trace the IP address to a physical point of origin." See, e.g., Malibu Media, LLC v. Does 1-19, 2012 WL 2152061, at *3 (S.D. Cal. June 12, 2012), and cases cited therein.

         Based on the allegations in the Complaint and the information provided in the supporting Declarations summarized above, the Court finds that plaintiff identified the defendant with enough specificity so that the Court may determine that defendant is a person who could be sued in Federal Court. Plaintiff provided the Court with information about ...


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