United States District Court, N.D. California
ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO
SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE
RE: DKT. NO. 7
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
before the Court is plaintiff Strike 3 Holdings, LLC's
Ex Parte Application for Leave to Serve a Third
Party Subpoena Prior to a Rule 26(f) Conference. (Dkt. No. 7
(“Motion”).) Because defendant John Doe
subscriber assigned IP address 188.8.131.52 (herein “Doe
defendant”) has not been identified or served, no
opposition has been filed. Having reviewed plaintiff's
motion and all supporting documents, the Court
Grants the motion for the reasons set forth
alleges that it is the owner of several “award winning,
critically acclaimed adult motion pictures” distributed
through its adult brands Blacked, Blacked
Raw, Tushy, and Vixen. (Dkt. No. 1
(“Compl.”) ¶¶ 2, 3.) The motion
pictures are registered with the United States Copyright
Office or have complete applications pending. (Id.
¶¶ 32, 33.)
23, 2019, plaintiff filed a complaint against Doe defendant,
who uses the IP address 184.108.40.206, alleging one claim for
copyright infringement under the Copyright Act. (Id.
¶¶ 35-40.) Plaintiff alleges that Doe defendant has
illegally infringed and distributed 78 of its copyrighted
movies over the BitTorrent File Distribution Network for an
extended period of time. (Id. ¶¶ 4, 24.)
Plaintiff describes the BitTorrent network as a “system
designed to quickly distribute large files over the
Internet.” (Id. ¶ 18.) Plaintiff further
alleges that Doe defendant, who “attempted to hide this
theft by infringing [p]laintiff's content anonymously,
” can be identified by his or her Internet Service
Provider (“ISP”), Comcast Cable Communications,
LLC (“Comcast Cable”), through his or her IP
address 220.127.116.11. (Id. ¶ 5.)
14, 2019, plaintiff filed the instant ex parte
motion asking the Court for leave to serve Comcast Cable with
a subpoena under Federal Rule of Civil Procedure 45. (Motion
at 2.) Plaintiff states that the subpoena will be limited to
demanding the name and address of the individual(s)
associated with Doe defendant's IP address.
may authorize early discovery before the Rule 26(f)
conference for the parties' and witnesses'
convenience and in the interests of justice. Fed.R.Civ.P.
26(d). Courts within the Ninth Circuit generally consider
whether a plaintiff has shown “good cause” for
early discovery. See, e.g., Strike 3 Holdings, LLC v.
Doe, No. 18CV232 GPC (BGS), 2018 WL 2329726, at *2 (S.D.
Cal. May 22, 2018); Strike 3 Holdings, LLC v. Doe,
18cv47-WQH (RBB), 2018 WL 1427002, at *2 (S.D. Cal. Mar. 22,
2018); Strike 3 Holdings, LLC v. Doe, No.
17-CV-07051-LB, 2018 WL 357287, at *2 (N.D. Cal. Jan. 10,
2018); Io Grp., Inc. v. Does 1-65, No. 10-4377 SC,
2010 WL 4055667, at *1 (N.D. Cal. Oct. 15, 2010);
Semitool, Inc. v. Tokyo Electron Am., Inc., 208
F.R.D. 273, 275 (N.D. Cal. 2002). “Good cause may be
found where the need for expedited discovery, in
consideration of the administration of justice, outweighs the
prejudice to the responding party.” Semitool,
208 F.R.D. at 276.
evaluating whether a plaintiff establishes good cause to
learn the identity of a Doe defendant through early
discovery, courts examine whether the plaintiff: (1)
identifies the Doe defendant with sufficient specificity such
that the court can determine that the defendant is a real
person who can be sued in federal court; (2) recounts the
steps taken to locate and identify the defendant; (3)
demonstrates that the action can withstand a motion to
dismiss; and (4) shows that the discovery is reasonably
likely to lead to identifying information that will permit
service of process. Columbia Ins. Co. v.
seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
“‘[W]here the identity of alleged defendants [is
not] known prior to the filing of a complaint[, ] 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.'”
Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (some modifications in original) (quoting Gillespie
v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
Whether Plaintiff Establishes Good Cause for Early
Court addresses the four seescandy.com factors in
Identification of Doe Defendant with Sufficient
plaintiff has the burden to identify Doe defendant with
enough specificity to establish that Doe defendant is a real
person subject to the Court's jurisdiction. “[A]
plaintiff identifies Doe defendants with sufficient
specificity by providing the unique IP addresses assigned to
an individual defendant on the day of the allegedly
infringing conduct, and by using ‘geolocation
technology' to trace the IP address to a physical point
of origin.” 808 Holdings, LLC v. Collective of Dec.