Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 24.6.45.29

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 STRIKE 3 HOLDINGS, LLC, Case No. 22-cv-02846-EMC 8 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 9 v. PARTE APPLICATION FOR LEAVE TO SERVE THIRD PARTY 10 JOHN DOE SUBSCRIBER ASSIGNED IP SUBPOENA ADDRESS 24.6.45.29, 11 Docket No. 8 Defendant. [13] 14 Plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures. See 15 Williamson Decl. ¶ 13. It alleges that someone – the Doe defendant here – who uses the IP 16 address 24.6.45.29 infringed on those copyrights. See Compl. ¶ 4 (alleging that “Defendant did 17 not infringe just one or two of Strike 3’s motion pictures[;] [r]ather, Defendant has been recorded 18 infringing 24 movies over an extended period of time”). Despite its own efforts, Strike 3 Holdings 19 has not been able to identify the individual associated with that IP address. See Mot. at 10. Strike 20 3 Holdings now asks the Court to let it serve a subpoena on non-party Comcast Cable, the Doe 21 defendant’s internet service provider, to learn the Doe defendant’s identity. See generally id. 22 Because Strike 3 Holdings has demonstrated that good cause exists to allow it to serve a 23 subpoena, the Court GRANTS the motion. 24 I. DISCUSSION 25 1. A court may authorize early discovery before the Rule 26(f) conference for the 26 parties’ and witnesses’ convenience and in the interests of justice. See Fed. R. Civ. P. 26(d). 27 Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good cause” for 1 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273 , 275–77 2 (N.D. Cal. 2002); Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 1:10-cv-00335-LJO-SKO, [3] 2010 WL 2353520 , at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, 4 Inc., 202 F.R.D. 612 , 613–14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may 5 be found where the need for expedited discovery, in consideration of the administration of justice, 6 outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276 . 7 2. In evaluating whether a plaintiff establishes good cause to learn the identity of a 8 Doe defendant through early discovery, courts examine whether the plaintiff: (1) identifies the 9 Doe defendant with sufficient specificity that the court can determine that the defendant is a real 10 person who can be sued in federal court, (2) recounts the steps taken to locate and identify the 11 defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) shows that 12 the discovery is reasonably likely to lead to identifying information that will permit service of 13 process. See Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573 , 578–80 (N.D. Cal. 1999) 14 (citations omitted). “‘[W]here the identity of alleged defendants [is not] known prior to the filing 15 of a complaint[,] the plaintiff should be given an opportunity through discovery to identify the 16 unknown defendants, unless it is clear that discovery would not uncover the identities, or that the 17 complaint would be dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160 , 1163 18 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 19 3. Strike 3 Holdings has made a sufficient showing under each of the four seescandy 20 factors listed above to establish good cause to permit it to engage in early discovery to identify the 21 Doe defendant by to serving a third-party subpoena on Comcast Cable. 22 4. “[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good 23 cause shown.” McCoy v. Sw. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The Court 24 issues the limited protective order described below because the ISP subscriber may be an innocent 25 third party and the subject matter of the suit deals with sensitive and personal matters. 26 5. The Court issues a protective order to the limited extent that any information 27 regarding the Doe defendant released to Strike 3 Holding by the ISP will be treated as confidential 1 *2 (N.D. Cal. 2010). Specifically, Strike 3 Holdings must not publicly disclose that information 2 until the Doe defendant has the opportunity to file a motion with this Court to be allowed to 3 proceed in this litigation anonymously and that motion is ruled on by the court. See id. If the Doe 4 defendant fails to file a motion for leave to proceed anonymously within 30 days after his or her 5 information is disclosed to Strike 3 Holdings’s counsel, this limited protective order will expire. 6 See id. Given the potential embarrassment associated with being publicly accused of having 7 illegally downloaded adult motion pictures, if the Doe defendant includes identifying information 8 within his or her request to proceed anonymously, the Court finds good cause to order the papers 9 filed under seal until the Court has the opportunity to rule on the request. See id. at *3 (permitting 10 party to file under seal a declaration with identifying information). If the Doe defendant includes 11 identifying information with his or her request to proceed anonymously and the request is placed 12 under seal, the Court will direct the Doe defendant to submit a copy of the under-seal request to 13 Strike 3 Holdings and will ensure that Strike 3 Holdings has time to respond. 14 II. CONCLUSION 15 The Court GRANTS Strike 3 Holdings’s Ex Parte Motion for Expedited Discovery with 16 respect to JOHN DOE subscriber assigned IP address 24.6.45.29 as follows. 17 1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 18 45 subpoena on Comcast Cable to obtain the Doe defendant’s true name and addresses. The 19 subpoena must have a copy of this order attached. 20 2. IT IS FURTHER ORDERED that the ISP will have 30 days from the date of 21 service upon them to serve the Doe defendant with a copy of the subpoena and a copy of this 22 order. The ISP may serve the Doe defendant using any reasonable means, including written notice 23 sent to his or her last known address, transmitted either by first-class mail or via overnight service. 24 3. IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the 25 date of service upon him or her to file any motions contesting the subpoena (including a motion to 26 quash or modify the subpoena) with the court that issued the subpoena. If that 30-day period 27 lapses without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce 1 4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any 2 subpoenaed information pending the resolution of any timely-filed motion to quash. 3 5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this 4 order must confer with Strike 3 Holdings and may not assess any charge in advance of providing 5 the information requested in the subpoena. The ISP that receives a subpoena and elects to charge 6 for the costs of production must provide a billing summary and cost reports that serve as a basis 7 for such billing summary and any costs claimed by the ISP. 8 6. IT IS FURTHER ORDERED that Strike 3 Holdings must serve a copy of this order 9 along with any subpoenas issued pursuant to this order to the necessary entities. 10 7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 Holdings 11 in response to a Rule 45 subpoena may be used by Strike 3 Holdings solely for the purpose of 12 protecting Strike 3 Holdings’s rights as set forth in its complaint. [13] 14 This order disposes of Docket No. 8. [15] 16 IT IS SO ORDERED. [17] 18 Dated: May 24, 2022 [19] 20 ______________________________________ EDWARD M. CHEN 21 United States District Judge