Case 3:19-cv-01104-EMC Document 9 Filed 04/15/19 Page 1 of 6
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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 73.71.176.191,
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`Case No. 19-cv-01104-EMC
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`ORDER GRANTING PLAINTIFF’S EX
`PARTE APPLICATION FOR LEAVE
`TO SERVE A THIRD-PARTY
`SUBPOENA PRIOR TO A RULE 26(F)
`CONFERENCE
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`Defendant.
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`Docket No. 7
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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 73.71.176.191, infringed on those copyrights by downloading and
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`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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`A.
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`Legal Standard
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`I.
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`ANALYSIS
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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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`Northern District of California
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`United States District Court
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`Case 3:19-cv-01104-EMC Document 9 Filed 04/15/19 Page 2 of 6
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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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`(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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`Northern District of California
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`United States District Court
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`Case 3:19-cv-01104-EMC Document 9 Filed 04/15/19 Page 3 of 6
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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 113 of its copyrighted works without authorization
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`and distributed them over an extended period via BitTorrent. Compl. ¶ 4. “[B]ut for the Doe
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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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`¶¶ 25–30. 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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`Northern District of California
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`United States District Court
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`Case 3:19-cv-01104-EMC Document 9 Filed 04/15/19 Page 4 of 6
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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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`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; see Docket No. 8. Thus, Plaintiffs have sufficiently alleged a prima facie case of direct
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`copyright infringement.1 See UMG Recordings, 2008 WL 4104214, at *5. Moreover, the Court
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`has subject matter jurisdiction over this copyright action under 28 U.S.C. 1338(a) as well as
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`personal jurisdiction over Defendant since his IP address is tied to a physical location in this
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`District. See Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (holding that a plaintiff need
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`only make a “prima facie showing of jurisdictional facts” to survive a motion to dismiss for lack
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`of personal jurisdiction). Venue is also proper. See Brayton Purcell LLP v. Recordon &
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`Recordon, 606 F.3d 1124, 1126 (9th Cir. 2010) (holding that in copyright infringement actions, 28
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`U.S.C. § 1400(a) “allow[s] venue in any judicial district where, if treated as a separate state, the
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`defendant would be subject to 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. 7-1, 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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`1 The Court notes, however, that in granting this motion, it is neither precluding the Doe
`Defendant from filing a motion to dismiss under Rule 12(b)(6) nor prejudging any such motion.
`The Court also advises Plaintiff that, upon obtaining the name and address of the Doe Defendant,
`it has a Rule 11 obligation to determine whether to proceed with the lawsuit and, in that regard, it
`should be mindful of the Ninth Circuit’s recent holding that “a bare allegation that a defendant is
`the registered subscriber of an Internet Protocol (“IP”) address associated with infringing activity
`is [in]sufficient to state a claim for direct or contributory infringement.” Cobbler Nevada, LLC v.
`Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018).
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`Northern District of California
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`United States District Court
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`Case 3:19-cv-01104-EMC Document 9 Filed 04/15/19 Page 5 of 6
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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. 7-1, 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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`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 further order of this Court and is forewarned that in
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`Case 3:19-cv-01104-EMC Document 9 Filed 04/15/19 Page 6 of 6
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`order to preserve this protective order, Defendant must promptly (within 30 days from the date of
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`service) file a motion under seal with this Court to be allowed to proceed in this litigation
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`anonymously.
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`II.
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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 may immediately serve a Rule 45 subpoena on
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`Comcast Cable to obtain the true name and address of the Doe Defendant at IP address
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`73.71.176.191. A copy of this Order must be attached to the subpoena, and any information
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`disclosed to Plaintiff in response to the subpoena may be used by Plaintiff solely for the purpose
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`of serving Defendant and prosecuting the claims asserted in the complaint.
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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 it 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
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`service upon him to file any motions contesting the subpoena with this Court. If that 30-day
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`period lapses without the Doe Defendant contesting the subpoena, Comcast Cable shall produce
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`the information 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 further order of this Court. The Doe Defendant may file
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`a motion with the Court for leave to proceed anonymously. The Doe Defendant will have 30 days
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`from the date of service upon him to file such a motion. He may file the motion under seal.
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`This order disposes of Docket No. 7.
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`IT IS SO ORDERED.
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`Dated: April 15, 2019
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`______________________________________
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`EDWARD M. CHEN
`United States District Judge
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`Northern District of California
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`United States District Court
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