Strike 3 Holdings, LLC

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 STRIKE 3 HOLDINGS, LLC, Case No.: 3:23-cv-01558-H-MSB 12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. OBJECTION 14 JOHN DOE subscriber assigned IP [Doc. Nos. 8, 10.] address 70.95.68.140, — 15 — Defendant. — 16 — — 17 — 18 On August 24, 2023, Strike 3 Holdings, LLC (“Plaintiff”) filed a complaint against 19 John Doe subscriber assigned IP address 70.95.68.140 (“Defendant”). (Doc. No. 1.) On 20 or around November 1, 2023, Plaintiff served a third-party subpoena on Defendant’s 21 Internet Service Provider, Spectrum, in order to obtain Defendant’s identifying 22 information. (Doc. No. 6.) On December 11, 2023, the Court received a letter from an 23 individual objecting to the disclosure of sensitive internet information related to the case. 24 (Doc. Nos. 8, 10.) On December 19, 2023, Plaintiff filed an opposition to the letter 25 objecting to the subpoena. (Doc. No. 12.) Plaintiff asserts that Defendant filed the letter 26 objecting to the subpoena and notes that to the extent Defendant’s letter constitutes a 27 motion to quash and a motion for a protective order, Plaintiff opposes Defendant’s motion 28 to quash but does not oppose Defendant’s motion for a protective order. (Id. at 2.) For the 1 reasons explained below, the Court denies Defendant’s objection to the subpoena and 2 enters a limited protective order in this matter. Defendant may proceed pseudonymously 3 as “John Doe” for the next 60 days from the date of this order. 4 I. LEGAL STANDARD 5 Under Federal Rule of Civil Procedure 45, any party may serve a subpoena 6 commanding a nonparty to “attend and testify; produce designated documents, 7 electronically stored information, or tangible things in that person’s possession, custody, 8 or control; or permit the inspection of premises.” Fed. R. Civ. P. 45(a)(1)(A)(iii). A 9 nonparty served with a subpoena may object to the subpoena within fourteen days after 10 service or before the time for compliance if less than fourteen days. Fed. R. Civ. 11 P. 45 (d)(2)(B). A party to the action, however, cannot simply object to a subpoena served 12 on a nonparty, but rather must make a motion to quash or seek a protective order. See 13 Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (citations omitted). 14 Upon a timely motion, the Court must quash or modify a subpoena that: (1) “fails to 15 allow a reasonable time to comply”; (2) “requires a person to comply beyond the 16 geographical limits specified in Rule 45(c)”; (3) “requires disclosures of privileged or other 17 protected matter, if no exception or waiver applies”; or (4) “subjects a person to undue 18 burden.” Fed. R. Civ. P. 45(d)(3)(A). Moreover, the Court may, on motion, quash or 19 modify a subpoena if it requires: (1) “disclosing a trade secret or other confidential 20 research, development, or commercial information”; or (2) “disclosing an unretained 21 expert's opinion or information that does not describe specific occurrences in dispute and 22 results from the expert’s study that was not requested by a party.” Fed. R. Civ. 23 P. 45 (d)(3)(B). “[T]he party who moves to quash a subpoena has the burden of 24 persuasion.” Strike 3 Holdings, LLC v. Doe, No. 19-cv-2452-JAH-LL, 2020 WL 2467067 , 25 at *2 (S.D. Cal. May 13, 2020) (citing Moon, 232 F.R.D. at 637 ). 26 II. DISCUSSION 27 As an initial matter, Defendant, a party to the instant action, cannot object to a 28 subpoena served on a nonparty, but rather must make a motion to quash or seek a protective 1 order. See Moon, 232 F.R.D. at 636 . Accordingly, Defendant’s objection is procedurally 2 improper and warrants denial on this basis alone. 3 Furthermore, even if the Court construes Defendant’s objection as a motion to quash, 4 Defendant does not raise any legitimate grounds for quashing the subpoena under Rule 5 45(d)(3). Although Defendant argues that “[t]he information in question pertains to private 6 online activities, and its disclosure would violate [his or her] right to privacy,” Plaintiff’s 7 interest in seeking limited discovery to obtain Defendant’s identity outweighs Defendant’s 8 privacy interest. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 18-cv-02648-VEC, 2019 9 WL 78987 , at *4 (S.D.N.Y. Jan. 2, 2019) (“Defendant’s privacy interest in withholding his 10 identity from Plaintiff is not sufficient to ‘permit him to avoid having to defend against a 11 claim of copyright infringement.’” (citation omitted)); Strike 3 Holdings, LLC v. Doe, 12 No. 23-cv-00092-H-MMP, 2023 WL 4280799 , at *2 (S.D. Cal. June 29, 2023) (“[T]o the 13 extent that Defendant seeks to quash Plaintiff’s subpoena to Spectrum due to privacy 14 concerns, . . . Plaintiff’s interest in seeking limited discovery to obtain Defendant’s identity 15 outweighs Defendant’s privacy interest.”). Moreover, Defendant’s concern regarding the 16 possibility of “security risks” is not the type of harm Rule 45 protects against. “The burden 17 that Rule 45 refers to is burden on the subpoenaed party or entity, not on a third party.” 18 Malibu Media, LLC v. John Does 1-6, 291 F.R.D. 191, 196 (N.D. Ill. 2013). “As courts 19 have consistently recognized, a subpoena directed to an internet service provider does not 20 compel the defendant to produce any information, and thus does not burden him; rather, it 21 is the internet service provider that is compelled to produce the information.” Id. 22 Furthermore, Defendant’s contention that “[he or she] has not been provided with sufficient 23 justification for the need to disclose this information” is similarly unavailing. As Plaintiff 24 correctly points out in its opposition, the Magistrate Judge issued a comprehensive order 25 granting early discovery and weighing the necessary factors against the facts of the instant 26 action. (See Doc. No. 5 at 4–9.) Because Defendant has failed to meet his or her burden 27 of persuasion to demonstrate that the subpoena should be quashed under Rule 45(d)(3), the 28 Court denies Defendant’s objection. 1 Lastly, in its opposition to Defendant’s objection, Plaintiff indicates that it does not 2 oppose the Court entering a protective order and permitting Defendant to proceed 3 pseudonymously as “John Doe” during the course of this litigation. (Doc. No. 12 at 3.) 4 “The normal presumption in litigation is that parties must use their real names.” Doe v. 5 Kamehameha Sch./Bernice Pauahi Bishop Est., 596 F.3d 1036, 1042 (9th Cir. 2010) 6 (citations omitted). This presumption is rooted in the public’s right to open courts and the 7 right of individuals to confront their accusers. Id.; see also Does I through XXIII v. Adv. 8 Textile Corp., 214 F.3d 1058 , 1067 (9th Cir. 2000) (explaining that a party’s use of a 9 fictitious name “runs afoul of the public’s common law right of access to judicial 10 proceedings”). Moreover, “there is a general right to inspect and copy public records and 11 documents, including judicial records and documents.” Kamehameha Sch./Bernice Pauahi 12 Bishop Est., 596 F.3d at 1042–43 (internal quotations and citation omitted). “The public 13 interest in understanding the judicial process has supported [this] general history of 14 access.” Id. at 1043 (internal quotations and citation omitted). 15 The Ninth Circuit allows a party to “preserve his or her anonymity in judicial 16 proceedings in special circumstances when the party’s need for anonymity outweighs 17 prejudice to the opposing party and the public’s interest in knowing the party’s identity.” 18 Adv. Textile Corp., 214 F.3d at 1068. Applying this balancing test, courts in the Ninth 19 Circuit have permitted parties to use pseudonyms in three situations: (1) “when 20 identification creates a risk of retaliatory physical or mental harm”; (2) “when anonymity 21 is necessary to preserve privacy in a matter of sensitive and highly personal nature”; and 22 (3) “when the anonymous party is compelled to admit his or her intention to engage in 23 illegal conduct, thereby risking criminal prosecution.” Id. (citations omitted). The fact 24 that a party “may suffer some embarrassment or economic harm is not enough.” See Doe 25 v. Rostker, 89 F.R.D. 158, 162 (N.D. Cal. 1981). Moreover, the Ninth Circuit has made 26 clear that use of a pseudonym should only be permitted occasionally and in “unusual” 27 cases. Adv. Textile Corp., 214 F.3d at 1067 (“In this circuit, we allow parties to use 28 pseudonyms in the unusual case . . . .” (internal quotations and citations omitted)); United 1 || States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008) (“As a general rule, the identity of 2 ||the parties in any action, civil or criminal, should not be concealed except in an unusual 3 || case, where there is a need for the cloak of anonymity.” (internal quotations and citations 4 ||omitted)). In the context of discovery, courts may grant a protective order upon a showing 5 || of good cause pursuant to Federal Rule of Civil Procedure 26(c). Fed. R. Civ. P. 26(c). 6 This Court acknowledges the public’s right to open courts and generally disagrees 7 || with the notion of parties proceeding anonymously. However, given that Plaintiff is still 8 || investigating whether Defendant is the infringer, the Court enters a limited protective order 9 ||in this matter. Defendant may proceed pseudonymously as “John Doe” for the next 60 days 10 || from the date of this order. This protective order fairly balances Plaintiff's and Defendant’s 11 |/interests and addresses any privacy concerns that Defendant may have while Plaintiff has 12 opportunity to further investigate whether Defendant is the infringer. 13 CONCLUSION 14 For the foregoing reasons, the Court denies Defendant’s objection to the subpoena 15 enters a limited protective order in this matter. Defendant may proceed 16 || pseudonymously as “John Doe” for the next 60 days from the date of this order. The Court 17 || directs the Clerk of the Court to redact Defendant’s name from the publicly filed letter 18 || objecting to the subpoena and notice of document discrepancies. (Doc. Nos. 10, 11.) 19 || Plaintiff is directed to serve a copy of this order on Spectrum. 20 IT IS SO ORDERED. 21 ||DATED: January 23, 2024 | | ll |. | | 22 MARILYN ®&. HUFF, Distri ge 23 UNITED STATES DISTRICT COURT — 24 — — 25 — — 26 — — 27 — — 28 —