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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`STRIKE 3 HOLDINGS, LLC,
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`Plaintiff,
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`v.
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`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 67.188.117.219,
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`Case No. 18-cv-05994-EMC
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`ORDER GRANTING PLAINTIFF’S EX
`PARTE APPLICATION FOR LEAVE
`TO SERVE THIRD PARTY
`SUBPOENA PRIOR TO RULE 26(F)
`CONFERENCE
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`Defendant.
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`Docket No. 8
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`Plaintiff Strike 3 Holdings produces and owns the copyrights for adult motion pictures
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`featured on its subscription-based websites. Plaintiff alleges that Doe Defendant, currently
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`identified only by his IP address 67.188.117.219, infringed on those copyrights by downloading
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`and distributing Plaintiff’s motion pictures. Plaintiff asks the Court for leave to serve a Rule 45
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`subpoena on non-party Comcast Cable Communications, LLC (“Comcast Cable”), Defendant’s
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`internet service provider (“ISP”), to find out Defendant’s identity. Because Plaintiff has
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`demonstrated that good cause exists to allow it to serve the subpoena, the Court GRANTS
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`Plaintiff’s application.
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`I.
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`BACKGROUND
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`Plaintiff produces adult motion pictures distributed through its Blacked, Tushy, Vixen, and
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`Blacked Raw brands. Docket No. 1 (“Compl.”) ¶ 3. Plaintiff owns the copyrights to the motion
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`pictures, which have either been registered with the United States Copyright Office or have
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`pending copyright registrations. Id. ¶ 32; see Compl., Exh. A (listing copyright registration
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`numbers). Plaintiff alleges that Defendant is using BitTorrent, a file distribution network, to
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`commit “rampant and wholesale copyright infringement” by downloading 42 of Plaintiff’s motion
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`Case 3:18-cv-05994-EMC Document 10 Filed 11/06/18 Page 2 of 7
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`pictures and distributing them to others over an extended period. Id. ¶¶ 4, 18. Plaintiff did not
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`give authorization to Defendant to download, copy, or distribute Plaintiff’s works. Id. ¶ 28.
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`Defendant can currently only be identified by his IP address of 67.188.117.219, provided
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`by his ISP Comcast Cable. Id. ¶ 13. Plaintiff’s forensic investigator, IPP International U.G.
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`(“IPP”), connected with Defendant’s IP address while Defendant was using BitTorrent and was
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`able to download digital media files containing Plaintiff’s copyrighted works from Defendant. Id.
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`¶¶ 25–26. By reference to the “file hash” of the downloaded files, which uniquely identifies each
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`file distributed on BitTorrent, id. ¶¶ 21–23, IPP verified that the files distributed by Defendant are
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`Plaintiff’s works, id. ¶ 30. Further, Plaintiff used “geolocation technology” to trace Defendant’s
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`IP address to a physical address in this District. Id. ¶ 9. Plaintiff asserts that only Comcast Cable
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`can identify Defendant through his IP address. Id. ¶ 5.
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`Plaintiff filed a complaint against Defendant on September 28, 2018, bringing one cause of
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`action for direct copyright infringement under the Copyright Act. Id. ¶¶ 35–40. On October 30,
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`2018, Plaintiff filed the instant ex parte application for leave to serve a Rule 45 subpoena on
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`Comcast Cable. See Docket No. 8 (“Mot.”). Plaintiff represents that the subpoena “will only
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`demand the true name and address of Defendant,” which Plaintiff will use to serve Defendant and
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`prosecute the claims asserted in the complaint. Mot. at 2.
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`II.
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`ANALYSIS
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`A.
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`Legal Standard
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`A court may authorize early discovery before the parties have conferred as required by
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`Federal Rule of Civil Procedure 26(f). See Fed. R. Civ. P. 26(d). In the Ninth Circuit, courts use
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`the “good cause” standard to determine whether discovery should be allowed to proceed prior to a
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`Rule 26(f) conference. UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA, 2008 WL 4104214, at
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`*3 (N.D. Cal. Sept. 3, 2008). Good cause may be found where the need for expedited discovery,
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`in consideration of the administration of justice, outweighs the prejudice to the responding
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`party. Id.; Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002).
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`To determine whether a plaintiff has established good cause to learn the identity of a Doe
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`defendant through early discovery, courts examine whether the plaintiff:
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`Case 3:18-cv-05994-EMC Document 10 Filed 11/06/18 Page 3 of 7
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`(1) identifies the Doe defendant with sufficient specificity that the court can determine that
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`the defendant is a real person who can be sued in federal court,
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`(2) recounts the steps taken to locate and identify the defendant,
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`(3) demonstrates that the action can withstand a motion to dismiss, and
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`(4) shows that the discovery is reasonably likely to lead to identifying information that will
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`permit service of process.
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`Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) (citations omitted
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`and line breaks added).
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`As a court in this District has explained:
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`In Internet infringement cases, courts routinely find good cause
`exists to issue a Rule 45 subpoena to discover a Doe defendant’s
`identity, prior to a Rule 26(f) conference, where a plaintiff makes a
`prima facie showing of infringement, there is no other way to
`identify the Doe defendant, and there is a risk an ISP will destroy its
`logs prior to the conference. This is because, in considering “the
`administration of justice,” early discovery avoids ongoing,
`continuous harm to the infringed party and there is no other way to
`advance the litigation. As for the defendant, there is no prejudice
`where the discovery request is narrowly tailored to only seek their
`identity. Thus, Courts routinely find the balance favors granting a
`plaintiff leave to take early discovery.
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`UMG Recordings, 2008 WL 4104214, at *3–4 (citations omitted).
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`B.
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`Good Cause
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`Here, Plaintiff has established all four of the seescandy factors, and accordingly has
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`demonstrated good cause for the Court to allow early discovery of the Doe Defendant’s identity.
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`First, Plaintiff has identified the Doe Defendant with sufficient specificity that the Court
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`can determine that Defendant is a real person who can be sued in federal court. “A plaintiff may
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`show that a defendant is a real person or entity by providing evidence of specific acts of
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`misconduct that could only have been perpetrated by actual people, as opposed to a mechanical
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`process.” Distinct Media Ltd. v. Doe Defendants 1-50, No. CV 15- 03312 NC, 2015 WL
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`13389609, at *2 (N.D. Cal. Sept. 29, 2015) (citation and internal quotation marks omitted). Here,
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`Plaintiff alleges that Defendant downloaded 42 of its copyrighted works without authorization and
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`distributed them over an extended period via BitTorrent. Compl. ¶ 4. “[B]ut for the Doe
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`Case 3:18-cv-05994-EMC Document 10 Filed 11/06/18 Page 4 of 7
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`Defendant directing his or her BitTorrent client to download the torrent file, the alleged
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`infringement would not have occurred.” Mot. at 9. In other words, it requires a real person to
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`initiate the act of downloading a file via BitTorrent, so Defendant is likely a real person who
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`perpetrated the alleged infringing acts at the identified IP address. Plaintiff has also used the
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`established “Maxmind” geolocation technology to twice trace Defendant’s IP address to a physical
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`location within this District. Compl. ¶ 9; see Criminal Prods., Inc. v. Doe-72.192.163.220, No.
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`16-CV-2589 WQH (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov. 18, 2016) (citing in part “the
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`documented success of the Maxmind geolocation service” to support the finding that plaintiff
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`showed that a particular IP address corresponds to a physical address). This gives the Court
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`personal jurisdiction over Defendant and over Plaintiff’s federal copyright claim. See Strike 3
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`Holdings, LLC v. Doe, No. 18-CV-4988-LB, 2018 WL 4587185, at *2 (N.D. Cal. Sept. 24, 2018).
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`Second, Plaintiff has recounted the previous steps it has taken to locate and identify the
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`Doe Defendant. Plaintiff hired a forensic investigator, IPP, to verify using unique file hashes that
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`Defendant downloaded and distributed Plaintiff’s motion pictures through his IP address. Compl.
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`¶¶ 21–26. Plaintiff then used geolocation technology to trace that IP address to this District. Id.
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`¶ 9. However, Plaintiff cannot deduce Defendant’s true name and other identifying information
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`from his IP address alone. Only Comcast Cable, Defendant’s ISP, can provide that information.
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`Id. ¶ 5. Thus, Plaintiff has “made a good faith effort to identify and locate the Defendant.” Strike
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`3 Holdings, LLC v. Doe, No. 18CV47-WQH (RBB), 2018 WL 1427002, at *4 (S.D. Cal. Mar. 22,
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`2018).
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`Third, Plaintiff has demonstrated that its copyright claim can withstand a motion to
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`dismiss. A plaintiff “must satisfy two requirements to present a prima facie case of direct
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`infringement: (1) [it] must show ownership of the allegedly infringed material and (2) [it] must
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`demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
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`holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
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`Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see
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`17 U.S.C. § 501(a). Under 17 U.S.C. § 106, a copyright holder has the exclusive rights to
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`reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted
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`Northern District of California
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`United States District Court
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`Case 3:18-cv-05994-EMC Document 10 Filed 11/06/18 Page 5 of 7
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`work. Here, Plaintiff alleges that it owns valid copyrights in the motion pictures, and that
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`Defendant reproduced and distributed the motion pictures without authorization. Compl. ¶¶ 4, 28,
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`32. Thus, Plaintiffs have sufficiently alleged a prima facie case of direct copyright infringement.
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`See UMG Recordings, 2008 WL 4104214, at *5. Moreover, the Court has subject matter
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`jurisdiction over this copyright action under 28 U.S.C. 1338(a) as well as personal jurisdiction
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`over Defendant since his IP address is tied to a physical location in this District. See Ballard v.
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`Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (holding that a plaintiff need only make a “prima facie
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`showing of jurisdictional facts” to survive a motion to dismiss for lack of personal jurisdiction).
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`Venue is also proper. See Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1126
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`(9th Cir. 2010) (holding that in copyright infringement actions, 28 U.S.C. § 1400(a) “allow[s]
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`venue in any judicial district where, if treated as a separate state, the defendant would be subject to
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`personal jurisdiction.”).
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`Fourth, Plaintiff has shown that the subpoena it seeks is reasonably likely to lead to
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`identifying information that will permit service of process on the Doe Defendant. Plaintiff has
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`used the American Registry for Internet Numbers to identify Comcast Cable as the ISP that owns
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`Defendant’s IP address. Docket No. 8-1, Exh. D (Declaration of Susan B. Stalzer) ¶ 11. Thus,
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`Comcast Cable is able to provide information regarding Defendant’s true identity based on his IP
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`address. Compl. ¶ 5. The subpoena will only seek Defendant’s name and address; with this
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`information, Plaintiff will be able to effectuate service on Defendant pursuant to Federal Rule of
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`Civil Procedure 4(a) and (e).
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`In addition to satisfying the seescandy factors, Plaintiff has also established that “there is
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`no other way to identify the Doe defendant, and there is a risk an ISP will destroy its logs prior to
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`the [Rule 26(f)] conference.” UMG Recordings, 2008 WL 4104214, at *4. With respect to the
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`former, Plaintiff alleges that Defendant has been infringing on its copyrighted works
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`anonymously, and that only Comcast Cable can link Defendant’s IP address to his actual name
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`and physical address. Compl. ¶¶ 5, 13; Docket No. 8-1, Exh. C (Declaration of Philip Pasquale)
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`¶ 10. With respect to the latter, Plaintiff asserts that ISPs tend to “only retain [IP address logs] for
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`a limited period of time.” Mot. at 8. This means that, without early discovery, Comcast Cable
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`Case 3:18-cv-05994-EMC Document 10 Filed 11/06/18 Page 6 of 7
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`may inadvertently destroy the data that would allow Plaintiff to identify Defendant. See id.
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`In sum, Plaintiff has shown that its need for expedited discovery, in consideration of the
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`administration of justice, outweighs the prejudice to the Doe Defendant. See Semitool, 208 F.R.D.
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`at 275–77.
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`C.
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`Protective Order
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`“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause
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`shown.” McCoy v. Sw. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). Several
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`considerations in this case counsel in favor of a protective order to preserve Defendant’s privacy,
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`and Plaintiff does not oppose such an order. See Mot. at 13.
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`First, courts in this District have repeatedly cautioned that “the ISP subscribers [unveiled
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`by a subpoena] may not be the individuals who infringed upon Strike 3 Holdings’s copyright,”
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`since, for example, another person may be using the ISP subscriber’s IP address to download files.
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`Strike 3 Holdings, 2018 WL 4587185, at *3 (collecting cases). Second, allowing a defendant to
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`proceed pseudonymously is appropriate where “necessary to preserve privacy in a matter of a
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`sensitive and highly personal nature,” and an “allegation that an individual illegally downloaded
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`adult motion pictures likely goes to matters of a sensitive and highly personal nature.” Id.
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`In view of the potential implication of an innocent third party, and the sensitivity of the
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`subject matter of the suit, the Court orders that Strike 3 Holdings shall not publicly disclose any of
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`Defendant’s identifying information until he has the opportunity to file a motion with this Court to
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`be allowed to proceed in this litigation anonymously and that motion is ruled on by the Court.
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`Defendant may file such a motion under seal.
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`III.
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`CONCLUSION
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`For the foregoing reasons, the Court GRANTS Plaintiff’s motion.
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`It is hereby ORDERED that Plaintiff 3 Holding may immediately serve a Rule 45
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`subpoena on Comcast Cable to obtain the true name and address of the Doe Defendant at IP
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`address 67.188.117.219. A copy of this Order must be attached to the subpoena, and any
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`information disclosed to Plaintiff in response to the subpoena may be used by Plaintiff solely for
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`the purpose of serving Defendant and prosecuting the claims asserted in the complaint.
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`Case 3:18-cv-05994-EMC Document 10 Filed 11/06/18 Page 7 of 7
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`It is further ORDERED that Comcast Cable will have 30 days from the date of service
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`upon them to serve the Doe Defendant with a copy of the subpoena and a copy of this Order.
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`It is further ORDERED that the Doe Defendant will have 30 days from the date of service
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`upon him to file any motions contesting the subpoena with this Court. If that 30-day period lapses
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`without the Doe Defendant contesting the subpoena, Comcast Cable shall produce the information
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`responsive to the subpoena to Plaintiff within 10 days.
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`It is further ORDERED that Plaintiff shall not publicly disclose any of the Doe
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`Defendant’s identifying information until he has had the opportunity to file a motion with this
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`Court for leave to proceed anonymously and that motion is ruled on by the Court. The Doe
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`Defendant will have 30 days from the date of service upon him to file such a motion, and he may
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`file the motion under seal.
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`This Order disposes of Docket No. 8.
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`IT IS SO ORDERED.
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`Dated: November 6, 2018
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`______________________________________
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`EDWARD M. CHEN
`United States District Judge
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