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LLC v. Doe

United States District Court, N.D. California

July 9, 2019

Strike 3 Holdings, LLC, Plaintiff,
v.
John Doe subscriber assigned IP address 98.207.0.72, Defendant.

          ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE RE: DKT. NO. 7

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

         Now 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 98.207.0.72 (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 below.

         I. Background

         Plaintiff 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.)

         On May 23, 2019, plaintiff filed a complaint against Doe defendant, who uses the IP address 98.207.0.72, 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 98.207.0.72. (Id. ¶ 5.)

         On June 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. (Id.)

         II. Legal Framework

         A court 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.

         In 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)).

         III. Discussion

         A. Whether Plaintiff Establishes Good Cause for Early Discovery

         The Court addresses the four seescandy.com factors in turn.

         1. Identification of Doe Defendant with Sufficient Specificity

         First, 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. ...


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