United States District Court, S.D. California
ORDER: (1) GRANTING EX PARTE APPLICATION FOR LEAVE TO
SERVE THIRD PARTY SUBPOENA PRIOR TO RULE 26(F) CONFERENCE
Bernard G. Skomal United States Magistrate Judge
Strike 3 Holdings, LLC's Ex Parte Applications
for Leave to Serve a Third Party Subpoena Prior to a Rule
26(f) Conference is GRANTED.
January 5, 2018, Plaintiff Strike 3 Holdings, LLC
(“Plaintiff”) filed its Complaint against
Defendant John Doe subscriber assigned Internet Protocol
(“IP”) address 18.104.22.168 (“Doe
Defendant”) for copyright infringement. (Compl. [ECF
No. 1].) On January 25, 2018, Plaintiff filed an Ex
Parte Application seeking leave to serve a third party
subpoena to ascertain the identity of the Doe Defendant.
(Ex Parte Appl. [ECF No. 4].)
Complaint, Plaintiff asserts that Defendant is liable for
direct copyright infringement. (Compl. ¶¶ 34-38.)
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 that was illegally distributing its works, Plaintiff
hired forensic investigator IPP International U.G.
(“IPP”). (Id. ¶¶ 24-28; Ex
Parte Appl. at 1.)
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. (Ex Parte Appl. at
1-2.) 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. at 2.)
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. (Id. at 6-12.)
STANDARD OF REVIEW
Cable Privacy Act
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. §
Requests for Discovery Before Rule 26(f) Conference
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).
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).