United States District Court, N.D. California, San Jose Division
ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO
SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE
[Re: ECF 6]
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
Strike 3 Holdings, LLC has filed an Ex Parte
Application for Leave to Serve a Third Party Subpoena Prior
to a Rule 26(f) Conference. Ex Parte Applic., ECF 6.
The application is GRANTED for the reasons discussed below.
produces and distributes adult motion pictures through
internet subscriptions and DVDs. Lansky Decl. ¶¶ 3,
15-17, Exh. A to Ex Parte Applic., ECF 6-1. When
Plaintiff puts videos online for its paid members to view,
they often are illegally downloaded and made available to
others. Lansky Decl. ¶ 23. Plaintiff hired a forensic
investigation services company, IPP International UG
(“IPP”), to monitor and record online
infringement of its movies. Fieser Decl. ¶¶ 3-4,
Exh. B. to Ex Parte Applic., ECF 6-1. IPP determined
that someone using the Internet Protocol (“IP”)
address 220.127.116.11 was distributing Plaintiff's
copyrighted movies. Fieser Decl. ¶¶ 6-10. Plaintiff
retained a cyber security firm, 7 River Systems, LLC, to
determine the identity of the subscriber of IP address
18.104.22.168. Pasquale Decl. ¶¶ 2-6, Exh. C to
Ex Parte Applic., ECF 6-1. 7 River Systems
determined that the Doe defendant's internet service
provider, Comcast Cable Communications, LLC is the only
entity that can correlate the IP address to its subscriber
and provide the identity of the subscriber. Pasquale Decl.
¶ 10. Plaintiff was able to trace the IP address to a
location in Antioch, California, which is within this
Court's jurisdiction. Kennedy Decl. ¶¶ 4-7,
Exh. E to Ex Parte Applic., ECF 6-1.
filed this copyright action on June 24, 2019, alleging that
“John Doe subscriber assigned IP address
22.214.171.124” is engaging in “ongoing and
wholesale copyright infringement” by downloading
Plaintiff's motion pictures and distributing them to
others. Compl. ¶¶ 1, 4. Plaintiff now seeks leave
to take early discovery, specifically, to serve a third party
subpoena on Comcast Cable seeking the identity of the John
general, “[a] party may not seek discovery from any
source before the parties have conferred as required by Rule
26(f).” Fed.R.Civ.P. 26(d)(1). However, “[a]
court may authorize early discovery before the Rule 26(f)
conference for the parties' and witnesses'
convenience and in the interests of justice.” G.N.
Iheaku & Co. Ltd. v. Does 1-3, No. C 14-02069 LB,
2014 WL 2759075, at *2 (N.D. Cal. June 17, 2014).
“Courts within the Ninth Circuit generally consider
whether a plaintiff has shown ‘good cause' for the
early discovery.” Id. (collecting cases).
determine whether there is ‘good cause' to permit
expedited discovery to identify doe defendants, courts
commonly consider whether: (1) the plaintiff can 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; (2) the plaintiff has
identified all previous steps taken to locate the elusive
defendant; (3) the plaintiff's suit against defendant
could withstand a motion to dismiss; and (4) the plaintiff
has demonstrated that there is a reasonable likelihood of
being able to identify the defendant through discovery such
that service of process would be possible.” Dallas
Buyers Club LLC v. Doe-126.96.36.199, No.
16-CV-01164-JSC, 2016 WL 4259116, at *2 (N.D. Cal. Aug. 12,
2016) (citations omitted).
the plaintiff does not know the identities of defendants,
“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.” Gillespie v. Civiletti, 629 F.2d
637, 642 (9th Cir. 1980).
has made a sufficient showing as to all four factors to
establish good cause for the requested early discovery.
First, Plaintiff has identified the missing defendant with
sufficient particularity to show that the defendant is a real
person or entity who could be sued in this Court. Second,
Plaintiff has described the steps it has taken to identify
the IP subscriber. Those steps, which included hiring a
forensic investigation services company and a cyber security
firm, are documented in the several declaration submitted in
support of Plaintiff's ex parte application.
See Exhs. A-E to Ex Parte Applic., ECF 6-1.
Plaintiff has alleged facts sufficient to withstand a motion
to dismiss. The complaint contains a single claim for direct
copyright infringement. Compl., ECF 1. That claim has two
elements: (1) ownership of the allegedly infringed material
and (2) violation of at least one exclusive right granted to
copyright holders under 17 U.S.C. § 106. Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir.
2007). Among the exclusive rights set forth in § 106 are
the rights to reproduce, sell to the public, or display to
the public a copyrighted work. 17 U.S.C. § 106.
Plaintiff alleges that it holds the copyrights to adult
motion pictures that the Doe defendant downloaded and
distributed without permission. Compl. ¶¶ 36-39,
ECF 1. Those allegations are sufficient to state a claim of
direct copyright infringement.
and finally, Plaintiff has provided the declaration of a
cyber security expert, stating that Comcast Cable is the only
entity that can identify the subscriber of the IP address
188.8.131.52. Pasquale Decl. ¶ 10, Exh. C to Ex
Parte Applic., ECF 6-1.
other cases like this one, involving adult content, some
district courts have found it appropriate to issue a sua
sponte protective order. For example, when Plaintiff
Strike 3 Holdings obtained leave to take early discovery in
another copyright case brought in this district, the court
sua sponte issued a protective order directing
Plaintiff to treat information regarding the Doe defendant as
confidential for a limited period of time, until the Doe
defendant had an opportunity to file a motion for leave to
proceed anonymously. See Strike 3 Holdings, LLC v.
Doe, No. 17-CV-07051-LB, 2018 ...