Case 3:21-cv-00294-SI Document 8 Filed 02/10/21 Page 1 of 5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`STRIKE 3 HOLDINGS, LLC,
`
`Plaintiff,
`
`v.
`
`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 104.56.119.158,
`
`Defendant.
`
`Case No. 21-cv-00294-SI
`
`
`ORDER GRANTING PLAINTIFF'S EX
`PARTE APPLICATION FOR LEAVE
`TO SERVE A THIRD-PARTY
`SUBPOENA
`
`Re: Dkt. No. 7
`
`
`
`
`
`Before the Court is an Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior
`
`to a Rule 26(f)Conference, filed by plaintiff Strike 3 Holdings, LLC. Dkt. No. 7. For the reasons
`
`set forth below, the Court hereby GRANTS plaintiff’s Ex Parte Application for Leave to Serve a
`
`Third-Party Subpoena Prior to a Rule 26(f)Conference.
`
`
`
`
`
`
`
` Plaintiff owns and distributes adult motion pictures on websites and DVDs. Dkt. No. 1,
`
`BACKGROUND
`
`
`
`Compl. ¶¶ 2-3. On January 12, 2021, plaintiff filed a complaint alleging that Doe Defendant with
`
`IP address 104.56.119.158 stole plaintiff’s works by downloading and distributing 42 of plaintiff’s
`
`adult motion pictures over an extended time period and without plaintiff’s permission. Id. at ¶ 4.
`
`
`
`On February 3, 2021, plaintiff filed an Ex Parte Application for Leave to Serve a Third-
`
`Party Subpoena Prior to Rule 26(f) Conference. Dkt. No. 7. Plaintiff seeks leave to serve
`
`defendant’s internet service provider, AT&T U-Verse, with a subpoena under Federal Rule of Civil
`
`Procedure 45. Id. at 2. The subpoena will request Doe Defendant’s name and address, which will
`
`be used to pursue plaintiff’s claims in the complaint. Id.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-00294-SI Document 8 Filed 02/10/21 Page 2 of 5
`
`
`
`LEGAL STANDARD
`
`Generally, formal discovery is only permitted after the parties have conferred as required by
`
`Federal Rule of Civil Procedure 26(f). However, a court may grant a request to take discovery prior
`
`to the parties' meeting under Rule 26(f) where the requesting party demonstrates “good cause.” See
`
`UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA, 2008 WL 4104214, at *4 (N.D. Cal. Sept. 3,
`
`2008); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. Apr. 19, 2002).
`
`Good cause exists “where the need for expedited discovery, in consideration of the administration
`
`of justice, outweighs the prejudice to the responding party.” UMG Recordings, 2008 WL 4104214
`
`at *4.
`
`To determine whether good cause justifies early discovery, courts consider whether the
`
`plaintiff has (1) “identif[ied] 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)
`
`“identif[ied] all previous steps taken to locate the elusive defendant”; (3) “establish[ed] to the
`
`Court's satisfaction that [the suit] could withstand a motion to dismiss”; and (4) filed a request
`
`showing “a reasonable likelihood that the discovery process will lead to identifying information
`
`about defendant that would make service of process possible.” Columbia Ins. Co. v. Seescandy.com,
`
`185 F.R.D. 573, 578–580 (N.D. Cal. 1999). Good cause is frequently found in cases involving
`
`claims of infringement and unfair competition. See Semitool, 208 F.R.D., at 276.
`
`
`
`DISCUSSION
`
`For the reasons stated below, the Court finds that plaintiff has demonstrated good cause for
`
`early discovery.
`
`
`
`I.
`
`Identifying Defendant with Sufficient Specificity
`
` Plaintiff has identified defendant with sufficient specificity such that the Court can
`
`determine that the defendant is a real party. Plaintiff identified an IP address currently owned by
`
`defendant. Compl. ¶ 5. See MCGIP, LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 3607666,
`
`at *2 (N.D. Cal. Aug. 15, 2011) (finding doe defendants identified with sufficient specificity where
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-00294-SI Document 8 Filed 02/10/21 Page 3 of 5
`
`
`
`complaint listed defendants by IP addresses on day of alleged infringement). The complaint alleges
`
`that plaintiff identified defendant’s IP address by using Maxmind Inc.’s geolocation technology.
`
`Compl. ¶ 9. On two separate occasions, the geolocation technology traced defendant’s IP address to
`
`a physical address within the Northern District of California. Id. Therefore, the Court finds that
`
`Plaintiff has provided sufficient information demonstrating that doe defendant is a real person who
`
`may be subject to the Court’s jurisdiction. See Strike 3 Holdings, LLC v. Doe., No. 19-cv-232, 2019
`
`WL 591460 at *2 (N.D. Cal. Feb. 13, 2019) (finding doe defendant sufficiently specified where
`
`plaintiff “established ‘Maxmind’ geolocation technology to twice trace Defendant’s IP address to a
`
`physical location within this district . . . giv[ing] the Court personal jurisdiction over Defendant and
`
`over Plaintiff’s federal copyright claim.”) (internal citations omitted); Pink Lotus Entm't. LLC v.
`
`Does 1–46, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (finding doe defendants identified
`
`with sufficient specificity where complaint listed IP addresses obtained through geolocation
`
`technology).
`
`
`
`II.
`
`Previous Steps to Locate Defendant
`
`Plaintiff has identified previous steps taken to locate defendant. Plaintiff used geolocation
`
`technology and defendant’s IP address to trace defendant’s location to within the Northern District
`
`of California. Dkt. No. 7-1 (Declaration of Emilie Kennedy) ¶ 5. Plaintiff conducted web searches
`
`and consulted with investigators to locate defendant’s identity. Dkt. No. 7 at 10. However,
`
`plaintiff’s attempts to identify defendant’s name and address were unsuccessful because only
`
`defendant’s identified Internet Service Provider, AT&T U-verse has defendant’s identifying
`
`information. Id. 7 at 1. See Compl. ¶¶ 5 (“Defendant’s Internet Service Provider (‘ISP’), AT&T
`
`U-verse, can identify Defendant through his or her IP address 104.56.119.158.”); 28 (“plaintiff has
`
`developed, owns, and operates an infringement detection system, named ‘VXN Scan.’”); 7-1
`
`(Declaration of David Williamson) ¶ 78 (“VXN connects with the Maxmind database to determine
`
`both the Internet Service Provider that assigned a particular IP address as well as the city and state
`
`the IP Address traces to”).
`
`
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-00294-SI Document 8 Filed 02/10/21 Page 4 of 5
`
`
`
`III. Ability to Withstand Motion to Dismiss
`
`To withstand a motion to dismiss on a claim of direct copyright infringement, the plaintiff
`
`must (1) “show ownership of the allegedly infringed material” and (2) “demonstrate that the alleged
`
`infringer violates at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.”
`
`Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citing Perfect 10, Inc.
`
`v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007)). A copyright holder has the exclusive
`
`rights to reproduce, distribute, publicly display, perform, and create derivative works of the
`
`copyrighted work. 17 U.S.C. § 106.
`
`
`
`Plaintiff has demonstrated that its copyright claim can withstand a motion to dismiss.
`
`Plaintiff alleges that it owns copyrights to the motion pictures allegedly infringed, showing
`
`ownership of the allegedly infringed material. Compl. ¶ 46 (“Plaintiff owns the copyrights to the
`
`Works and the Works have been registered with the United States Copyright Office.”). Moreover,
`
`plaintiff has sufficiently demonstrated a violation of at least one of plaintiff’s copyrights by alleging
`
`defendant “downloaded, copied, and distributed Plaintiff’s Works without authorization.” Id. ¶ 44.
`
`
`
`IV.
`
`Likelihood that Discovery Will Lead to Identifying Information
`
`Finally, plaintiff has shown that plaintiff’s requested subpoena is reasonably likely to lead
`
`to defendant’s identifying information. Defendant’s internet service provider, AT&T U-verse, will
`
`be able to provide defendant’s name and address in response to a subpoena. Id. ¶ 5.
`
`
`
`CONCLUSION
`
`
`
`For the foregoing reasons and for good cause shown, the Court hereby GRANTS plaintiff’s
`
`Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f)Conference.
`
`Plaintiff may serve a Rule 45 subpoena on AT &T U-Verse to obtain the true name and address of
`
`the Doe Defendant listed in plaintiff’s complaint. The subpoena must have a copy of this Order
`
`attached.
`
`AT&T U-Verse will have 30 days from the date of service upon it to serve each entity or
`
`person whose information is sought with a copy of the subpoena and a copy of this Order. AT&T
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-00294-SI Document 8 Filed 02/10/21 Page 5 of 5
`
`
`
`U-Verse may serve Doe defendant using any reasonable means, including written notice to his or
`
`her last known address, transmitted either by first-class mail or via overnight service.
`
`The Doe Defendant will have 30 days from the date of service upon him or her to file any
`
`applications contesting the subpoena (including an application to quash or modify the subpoena)
`
`with this Court. If the Doe defendant does not contest the subpoena within that 30-day period, AT&T
`
`U-Verse will have 10 days to produce the information responsive to the subpoena to Plaintiff Strike
`
`3.
`
`AT&T U-Verse must preserve any subpoenaed information pending the resolution of any
`
`timely filed application to quash.
`
`AT&T U-Verse must confer with plaintiff and may not assess any charge in advance of
`
`providing the information requested in the subpoena. Should AT&T U-Verse elect to charge for the
`
`costs of production, it must provide Strike 3 (i) a billing summary and (ii) cost reports that serve as
`
`a basis for such billing summary and any costs claimed by AT&T.
`
`Plaintiff Strike 3 must serve a copy of this order along with any subpoenas issued pursuant
`
`to this order to the necessary entities.
`
`Any information disclosed to Strike 3 in response to a Rule 45 subpoena may be used by
`
`Strike 3 solely for the purpose of protecting its rights as set forth in its complaint.
`
`
`
`IT IS SO ORDERED.
`
`Dated: February 10, 2021
`
`______________________________________
`
`SUSAN ILLSTON
`United States District Judge
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`