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LLC v. Doe

United States District Court, S.D. California

May 7, 2018

STRIKE 3 HOLDINGS, LLC, Plaintiff,
v.
JOHN DOE, subscriber assigned IP address 76.88.7.87, Defendant.

          ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO RULE 26(F) CONFERENCE [ECF NO. 4]

          Hon. Bernard G. Skomal United States Magistrate Judge

         Plaintiff Strike 3 Holdings, LLC's Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference (ECF No. 4) is GRANTED.

         I. BACKGROUND

          On January 31, 2018, Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) filed its Complaint against John Doe subscriber assigned Internet Protocol (“IP”) address 76.88.7.87 (“Doe Defendant”) for copyright infringement. (ECF No. 1.) On February 13, 2018, Plaintiff filed an Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference to ascertain the identity of Doe Defendant. (ECF No. 4.)

         In its Complaint, Plaintiff asserts that Doe Defendant is liable for direct copyright infringement. (ECF No. 1 ¶¶ 34-39.[1]) Plaintiff alleges it owns the copyrights for movies it distributes through adult websites and DVD sales. (Id. ¶¶ 3, 13.) Plaintiff alleges Doe Defendant used BitTorrent, a peer-to-peer file sharing system, to copy and distribute its movies without consent. (Id. ¶¶ 4-5, 17-38.) To identify the IP address of the Doe Defendant, Plaintiff hired forensic investigator IPP International U.G. (Id. ¶¶ 24-28.)

         As it can only identify the Doe Defendant by the IP address used, Plaintiff requests permission to serve a Federal Rule of Civil Procedure 45 subpoena on the Internet Service Provider (“ISP”), Spectrum (Time Warner Cable), that issued the IP address to Doe Defendant. (ECF No. 4-1 at 6-7.) The proposed subpoena only demands the name and address of Doe Defendant, and Plaintiff indicates it will only use this information to prosecute claims in the Complaint. (Id.)

         Plaintiff claims good cause exists to grant the Ex Parte Application because: (1) Plaintiff has identified Doe Defendant with sufficient specificity through geolocation technology and forensic investigation; (2) Plaintiff has identified all previous steps taken to locate Doe Defendant; (3) Plaintiff's Complaint could withstand a motion to dismiss; and (4) Plaintiff has established that there is a reasonable likelihood that Plaintiff can identify the Doe Defendant and effectuate service. (See Id. at 6-17.)

         II. STANDARD OF REVIEW

         A. Cable Privacy Act

         The Cable Privacy Act prohibits a cable operator from disclosing “personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.” 47 U.S.C. § 551(c)(1). However, a “cable operator may disclose such information if the disclosure is . . . made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.” 47 U.S.C. § 551(c)(2)(B). A cable operator is “any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.” 47 U.S.C. § 522(5).

         B. Requests for Discovery Before Rule 26(f) Conference

         Unless a court order permits discovery, it is not allowed until the parties meet and confer pursuant to Federal Rule of Civil Procedure 26(f). See Fed. R. Civ. P. 26(d)(1). To determine if early discovery is warranted in a particular case, the court applies a “good cause” test by weighing the need for discovery to further justice against the prejudice it may cause the opposing party. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002); see also Strike 3 Holdings, LLC v. Doe, No. 17CV2317 JAH (BLM), 2017 WL 6389848, at *1 (S.D. Cal. Dec. 14, 2017) (citing Semitool, 208 F.R.D. at 274).

         The Ninth Circuit has held that when a defendant's identity is unknown at the time a complaint is filed, courts may grant a plaintiff leave to take early discovery to determine the defendant's identity “unless it is clear that discovery would not uncover the identit[y], or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In determining whether to grant leave for early discovery to ascertain a defendant's identity, district courts consider: (1) whether the plaintiff can “identify the missing party with sufficient specificity such that the defendant is a real person or entity who could be sued in federal court”; (2) whether the plaintiff has described “all previous steps taken to locate the elusive defendant”; (3) whether the “suit against defendant could withstand a motion to dismiss”; and (4) whether the requested “discovery process would lead to identifying information about [the] defendant that would make service of process possible.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

         III. ...


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