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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`San Francisco Division
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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 73.231.137.127,
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`Defendant.
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`Case No. 3:23-cv-04335-LB
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`ORDER GRANTING EX PARTE
`APPLICATION FOR LEAVE TO
`SERVE THIRD-PARTY SUBPOENA
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`Re: ECF No. 9
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`The plaintiff Strike 3 Holdings owns the copyrights for several adult motion pictures.1 It
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`INTRODUCTION
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`Northern District of California
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`United States District Court
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`alleges that someone — the Doe defendant here — who uses the IP address 73.231.137.127
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`infringed on those copyrights.2 Despite its own efforts, Strike 3 has not been able to identify the
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`individual associated with that IP address.3 Strike 3 now asks the court to let it serve a subpoena
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`on non-party Comcast Cable, the Doe defendant’s internet-service provider (ISP), to learn the Doe
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`1 Appl. – ECF No. 9 at 9. Citations refer to material in the Electronic Case File (ECF); pinpoint
`citations are to the ECF-generated page numbers at the top of documents.
`2 Compl. – ECF No. 1 at 2 (¶¶ 4–5).
`3 Appl. – ECF No. 9 at 14.
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`ORDER – 3:23-cv-04335-LB
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`Case 3:23-cv-04335-LB Document 10 Filed 09/13/23 Page 2 of 8
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`defendant’s identity.4 Because Strike 3 has demonstrated that good cause exists to allow it to serve
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`a subpoena, the court grants the motion.
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`STATEMENT
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`Strike 3 is the owner of several adult motion pictures distributed through its adult brands
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`Blacked, Tushy, Vixen, Tushy Raw, Blacked Raw, and Slayed.5 The motion pictures are registered
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`with the United States Copyright Office.6
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`The Doe defendant, who uses the Comcast Cable-provided IP address 73.231.137.127, used
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`the file distribution network known as “BitTorrent” to illegally download and distribute Strike 3’s
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`copyrighted movies.7 Through geolocation technology, Strike 3 has traced each download made to
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`the Doe defendant’s IP address to a physical address in the Northern District of California.8 Using
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`a proprietary infringement detection system called “VXN Scan,” Strike 3 established direct
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`“TCP/IP” connections with the defendant’s IP address while the defendant was using BitTorrent.9
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`VXN Scan downloaded media files containing a digital copy of Strike 3’s copyrighted movies
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`from the defendant.10 The “Info Hash” — the data that BitTorrent protocol uses to identify media
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`files across the BitTorrent network — confirmed that the files that VXN Scan downloaded were
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`downloaded from the defendant.11 The defendant “has been recorded infringing 24 movies over an
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`extended period of time.”12 Strike 3 did not give the defendant authorization to distribute its
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`4 See generally Appl. – ECF No. 9.
`5 Compl. – ECF No. 1 at 1–2 (¶¶ 2–3).
`6 Id. at 6 (¶ 46).
`7 Id. at 2 (¶¶ 4–5).
`8 Id. (¶ 9).
`9 Id. at 5 (¶¶ 28–30).
`10 Id. (¶¶ 31–35).
`11 Id. at 6 (¶ 36).
`12 Id. at 2 (¶ 4).
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`ORDER – 3:23-cv-04335-LB
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`Case 3:23-cv-04335-LB Document 10 Filed 09/13/23 Page 3 of 8
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`copyrighted movies.13 Strike 3 alleges that Comcast Cable can identify the defendant through his
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`or her IP address.14
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`On August 24, 2023, Strike 3 filed a complaint against the Doe defendant alleging one claim
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`for copyright infringement under the Copyright Act.15 On September 8, 2023, Strike 3 filed an ex
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`parte application asking the court to allow it to serve Comcast Cable with a subpoena under
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`Federal Rule of Civil Procedure 45.16 Strike 3 says that the subpoena will be limited to the name
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`and address of the individual/ individuals associated with the Doe defendant’s IP address.17
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`GOVERNING LAW
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`A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
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`witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the
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`Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
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`See, e.g., IO Grp., Inc. v. Does 1–65, No. 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.
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`15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–77 (N.D. Cal. 2002);
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`Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. 1:10-cv-00335-LJO-SKO, 2010 WL
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`2353520, at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202
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`F.R.D. 612, 613–14 (D. Ariz. 2001) (collecting cases and standards). “Good cause may be found
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`where the need for expedited discovery, in consideration of the administration of justice,
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`outweighs the prejudice to the responding party.” Semitool, 208 F.R.D. at 276.
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`In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe
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`defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe
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`defendant with sufficient specificity that the court can determine that the defendant is a real person
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`who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant,
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`13 Id. at 6 (¶ 44).
`14 Id. at 2 (¶ 5).
`15 Id. at 6‒7 (¶¶ 48–52).
`16 Appl. – ECF No. 9 at 10.
`17 Id.
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`ORDER – 3:23-cv-04335-LB
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`Case 3:23-cv-04335-LB Document 10 Filed 09/13/23 Page 4 of 8
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`(3) demonstrates that the action can withstand a motion to dismiss, and (4) shows that the
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`discovery is reasonably likely to lead to identifying information that will 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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`“[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
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`plaintiff should be given an opportunity through discovery to identify the unknown defendants,
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`unless it is clear that discovery would not uncover the identities, or that the complaint would be
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`dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).
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`1. Strike 3 Establishes Good Cause for Early Discovery
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`ANALYSIS
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`Strike 3 has made a sufficient showing under each of the four seescandy factors listed above to
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`establish good cause to permit it to engage in early discovery to identify the Doe defendant.
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`First, Strike 3 has identified the Doe defendant with sufficient specificity that the court can
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`determine that he or she is a real person who can be sued in federal court. It alleges that the Doe
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`defendant downloaded Strike 3’s copyrighted adult motion pictures and distributed them over the
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`BitTorrent network.18 To download the movie, the Doe defendant had to direct his or her
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`BitTorrent client to download the media file.19 These facts indicate that the Doe defendant is an
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`identifiable adult who likely is the primary subscriber of the IP address or someone who resides
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`with and is known to the subscriber. Strike 3 also has traced each download made to the Doe
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`defendant’s IP address to the Northern District of California, thus giving the court jurisdiction
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`over the defendant and Strike 3’s federal claim.20
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`Second, Strike 3 has recounted the steps taken to locate and identify the Doe defendant. The
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`Doe defendant downloaded and distributed Strike 3’s movies through his or her IP address, and
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`18 Compl. – ECF No. 1 at 2 (¶ 4).
`19 Appl. – ECF No. 9 at 16.
`20 Compl. – ECF No. 1 at 2–3 (¶¶ 8–11).
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`ORDER – 3:23-cv-04335-LB
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`Case 3:23-cv-04335-LB Document 10 Filed 09/13/23 Page 5 of 8
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`his or her IP address was traced to this district.21 The IP address is not sufficient for Strike 3 to
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`identify the Doe defendant.22
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`Third, Strike 3 has demonstrated that its copyright claim could withstand a motion to dismiss.
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`A plaintiff “must satisfy two requirements to present a prima facie case of direct infringement:
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`(1) [he or she] must show ownership of the allegedly infringed material and (2) [he or she] 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); see 17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights
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`to reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted
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`work. Direct copyright infringement does not require intent or any particular state of mind. Fox
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`Broad. Co. v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098–99 (C.D. Cal. 2012); Religious
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`Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).
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`Strike 3 alleges that it holds the copyrights for the adult motion pictures that the Doe defendant
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`downloaded (and thus copied) and distributed the movies without its permission.23 Strike 3 has
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`sufficiently alleged a prima facie claim for copyright infringement.
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`Fourth, Strike 3 has shown that the discovery it seeks is reasonably likely to lead to identifying
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`information that will permit service of process on the Doe defendant. Strike 3 alleges that the Doe
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`Defendant’s ISP, Comcast Cable, can identify the Doe defendant through his or her IP address.24
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`2. 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., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The court issues the
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`limited protective order described below because the ISP subscriber may be an innocent third
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`party and the subject matter of the suit deals with sensitive and personal matters.
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`21 Compl. – ECF No. 1 at 2–3 (¶¶ 9–10).
`22 Appl. – ECF No. 9 at 14.
`23 Compl. – ECF No. 1 at 6 (¶¶ 44, 46).
`24 Id. at 2 (¶ 5).
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`ORDER – 3:23-cv-04335-LB
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`Case 3:23-cv-04335-LB Document 10 Filed 09/13/23 Page 6 of 8
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`Here, as has been discussed by other courts in this district, the ISP subscribers may not be the
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`individuals who infringed upon Strike 3’s copyright. See, e.g., Pac. Century Int’l Ltd. v. Does 1–
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`101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011); see also IO
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`Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1, 2011)
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`(granting the plaintiff additional time to identify and serve the true defendant where a subscriber
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`asserted that he did not infringe plaintiff’s work, suggesting that someone else used his IP address
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`to infringe the plaintiff’s work, and the plaintiff claimed that it needed to take third-party
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`discovery from the subscriber to try to identify who actually used the subscriber’s IP address to
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`allegedly infringe the plaintiff’s work).
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`Additionally, requests for pseudonymity have been granted when anonymity is necessary to
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`preserve privacy in a matter of a sensitive and highly personal nature. See Does I Thru XXIII v.
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`Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). An allegation that an individual
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`illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly
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`personal nature, including one’s sexuality.
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`Accordingly, the court issues a protective order to the limited extent that any information
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`regarding the Doe defendant released to Strike 3 by the ISP will be treated as confidential for a
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`limited duration. See IO Grp., Inc. v. Does 1–19, No. C 10-03851 SI, 2010 WL 5071605, at *2
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`(N.D. Cal. Dec. 7, 2010). Specifically, Strike 3 must not publicly disclose that information until
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`the Doe defendant has the opportunity to file a motion with this court to be allowed to proceed in
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`this litigation anonymously and that motion is ruled on by the court. Id. If the Doe defendant fails
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`to file a motion for leave to proceed anonymously within 30 days after his or her information is
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`disclosed to Strike 3’s counsel, this limited protective order will expire. Id. Given the potential
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`embarrassment associated with being publicly accused of having illegally downloaded adult
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`motion pictures, if the Doe defendant includes identifying information within his or her request to
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`proceed anonymously, the court finds good cause to order the papers filed under seal until the
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`court has the opportunity to rule on the request. See id. at *3 (permitting party to file under seal a
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`declaration with identifying information). If the Doe defendant includes identifying information
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`with his or her request to proceed anonymously and the request is placed under seal, the court will
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`ORDER – 3:23-cv-04335-LB
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`Case 3:23-cv-04335-LB Document 10 Filed 09/13/23 Page 7 of 8
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`direct the Doe defendant to submit a copy of the under-seal request to Strike 3 and will ensure that
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`Strike 3 has time to respond.
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`CONCLUSION
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`The court GRANTS Strike 3’s Ex Parte Motion for Expedited Discovery with respect to
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`JOHN DOE subscriber assigned IP address 73.231.137.127 as follows.
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`1. IT IS HEREBY ORDERED that Strike 3 Holding may immediately serve a Rule 45
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`subpoena on Comcast Cable to obtain the Doe defendant’s true name and addresses. The subpoena
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`must have a copy of this order attached.
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`2. IT IS FURTHER ORDERED that the ISP 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. The
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`ISP may serve the Doe defendant using any reasonable means, including written notice sent to his
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`or her last known address, transmitted either by first-class mail or via overnight service.
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`3. IT IS FURTHER ORDERED that the Doe defendant will have 30 days from the date of
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`service upon him or her to file any motions contesting the subpoena (including a motion to quash
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`or modify the subpoena) with the court that issued the subpoena. If that 30-day period lapses
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`without the Doe defendant contesting the subpoena, the ISP will have 10 days to produce the
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`information responsive to the subpoena to Strike 3.
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`4. IT IS FURTHER ORDERED that the subpoenaed entity must preserve any subpoenaed
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`information pending the resolution of any timely-filed motion to quash.
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`5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this order
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`must confer with Strike 3 and may not assess any charge in advance of providing the information
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`requested in the subpoena. The ISP that receives a subpoena and elects to charge for the costs of
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`production must provide a billing summary and cost reports that serve as a basis for such billing
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`summary and any costs claimed by the ISP.
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`6. IT IS FURTHER ORDERED that Strike 3 must serve a copy of this order along with any
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`subpoenas issued pursuant to this order to the necessary entities.
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`ORDER – 3:23-cv-04335-LB
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`Case 3:23-cv-04335-LB Document 10 Filed 09/13/23 Page 8 of 8
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`7. IT IS FURTHER ORDERED that any information disclosed to Strike 3 in response to a
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`Rule 45 subpoena may be used by Strike 3 solely for the purpose of protecting Strike 3’s rights as
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`set forth in its complaint.
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`IT IS SO ORDERED.
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`Dated: September 13, 2023
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`______________________________________
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`LAUREL BEELER
`United States Magistrate Judge
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`ORDER – 3:23-cv-04335-LB
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