Case 3:23-cv-05494-PHK Document 9 Filed 12/29/23 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
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`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
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`v.
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`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 107.130.100.9,
`Defendant.
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`
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`Case No. 23-cv-05494-PHK
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`ORDER (1) GRANTING STRIKE 3
`HOLDINGS, LLC’S EX PARTE
`APPLICATION FOR LEAVE TO
`SERVE THIRD-PARTY SUBPOENA
`AND (2) ISSUING PROTECTIVE
`ORDER
`Re: Dkt. No. 8
`
`Now before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte Application
`for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. [Dkt. 8]. Because
`Defendant John Doe, subscriber assigned IP address number 107.130.100.9, (“Defendant Doe”) has
`not been identified or served, no opposition has been filed. Having reviewed Strike 3’s application
`and all supporting documents, the Court GRANTS the ex parte application. Further, on the Court’s
`own motion, the Court additionally ISSUES a limited Protective Order for the reasons set forth
`below.
`
`BACKGROUND
`Strike 3 alleges that it is the assignee of copyrights registered with the U.S. Copyright Office
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`to certain adult motion pictures distributed through various adult websites and DVD sales. See Dkt.
`1 at 1, 6. Strike 3 indicates it is a Delaware corporation located in Camden, Delaware. Id. at ¶ 12.
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`Defendant Doe was named in the Complaint solely in connection with a specific Internet
`Protocol (“IP”) address. [Dkt. 1]. “An IP address is a ‘unique numerical address’ assigned to every
`computer and can serve as its identifying characteristic.” United States v. Henderson, 906 F.3d
`1109, 1111 n.1 (9th Cir. 2018). An IP address is not a physical address but instead is a unique
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`identifier for every computer or server connected to the Internet. United States v. Forrester, 512
`F.3d 500, 510 n.5 (9th Cir. 2008). As is well-known, consumers and households connect their home
`computers and other devices to the Internet by subscribing to such service through a vendor called
`an internet service provider (“ISP”), often a cable company, telecommunications company, or other
`similar service provider. Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545
`U.S. 967, 974 (2005) (“The traditional means by which consumers in the United States access the
`network of interconnected computers that make up the Internet is through “dial-up” connections
`provided over local telephone facilities. Using these connections, consumers access the Internet by
`making calls with computer modems through the telephone wires owned by local phone companies.
`Internet service providers (ISPs), in turn, link those calls to the Internet network, not only by
`providing a physical connection, but also by offering consumers the ability to translate raw Internet
`data into information they may both view on their personal computers and transmit to other
`computers connected to the Internet.”) (citations omitted).
`When a subscriber (or consumer) signs up for Internet service, the ISP assigns an IP address
`to that subscriber – essentially renting out the IP address to the consumer for the duration of their
`subscription service period. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 575 (N.D. Cal.
`1999) (“On the Internet, computers find each other by reference to Internet Protocol (IP) addresses,
`which are a series of numbers that are used to specify the address of a particular machine connected
`to the Internet. Domain names are alphanumeric strings that are associated with particular IP
`addresses. Thus to find the computer at 129.99.135.66, a user might type in uscourts.gov, and would
`never need to know the actual IP address.”). The consumer does not own the IP address – it is
`controlled by the ISP and allocated to subscribers when they sign up for service. UMG Recordings,
`Inc. v. Doe, No. 08-cv-1193-SBA, 2008 WL 4104214, at *2 (N.D. Cal. Sept. 3, 2008) (“[W]hen an
`ISP is given a defendant’s IP address and the date and time of infringement, it quickly and easily
`can identify the name and address of a Doe defendant, i.e., the ISP’s subscriber, because that
`information is contained in the ISP’s subscriber activity log files.”) (citation omitted). Because the
`ISP sends monthly or regular bills to the subscriber and has the original service application
`documents from each subscriber, and because the ISP knows which of its IP addresses were assigned
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`to which customers, it follows that an ISP’s internal records should typically include information
`sufficient to link a customer with the account corresponding to a particular IP address. Id.
`Here, Strike 3 avers that it traced the IP address used by Defendant Doe’s device to a physical
`address in the Northern District of California using a geolocation tool developed by a vendor called
`Maxmind, Inc. (“Maxmind”). [Dkt. 1 at ¶ 9; Dkt. 8 at 17]. Using Maxmind, Strike 3 avers that it
`identified Defendant Doe in this case as a subscriber using assigned IP address 107.130.100.9. See
`Dkt. 1 at ¶ 9; Dkt. 8 at 17. Further, Strike 3 alleges, from information obtained by Maxmind, that
`AT&T Internet (“AT&T”) is the ISP for and owner of the IP address which was allocated to
`Defendant Doe as part of their subscription for internet service from AT&T. [Dkt. 8 at 9].
`Defendant Doe is accused of using an internet-connected device and a peer-to-peer file
`distribution network called BitTorrent to download and distribute, through the internet, copies of
`Strike 3’s copyrighted motion pictures without license or authorization. See Dkt. 1 at ¶¶ 18–44.
`BitTorrent is a software-implemented protocol for sharing electronic files (such as digitized files of
`motion pictures, television shows, and other content) directly between individuals’ internet-
`connected devices. UMG Recordings, 2008 WL 4104214 at *1 (“The Internet and peer-to-peer
`(P2P) networks have spawned an illegal trade in copyrighted works. By downloading P2P software,
`and logging onto a P2P network, an individual may upload (distribute) or download (copy), without
`authorization, countless copyrighted music and video files to or from any other P2P network user
`worldwide. [. . .] [S]imilar online media distribution systems emerged that have attempted to
`capitalize on the growing illegal market that Napster fostered. These include Ares, KaZaA,
`eDonkey, BitTorrent, DirectConnect, and Gnutella, among others.”) (citations and footnote
`omitted). Strike 3 alleges that Defendant Doe used BitTorrent for “downloading Strike 3’s motion
`pictures as well as distributing them to others[]” and “has been recorded infringing 24 movies over
`an extended period of time.” See Dkt. 1 at ¶ 4.
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`As a further part of its investigation, Strike 3 alleges it is the owner and operator of an
`investigative technology tool called “VXN Scan.” Id. at ¶ 28. Using VXN Scan, Strike 3 allegedly
`established direct communication connections over the internet (using a “TCP/IP” (or Transmission
`Control Protocol/Internet Protocol) connection) between Strike 3’s investigators’ computers and
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`Defendant Doe’s device (which was connected to the internet at the IP address named in the
`Complaint) during a time period when Defendant Doe’s device was connected to the internet and
`was using BitTorrent. Id. at ¶ 30. According to the Complaint, VXN Scan searches for and obtains
`“.torrent” files from the target device and then downloads complete copies of the digital media files
`that correlate to those “.torrent” files to determine whether those downloaded files are infringing
`copies of one of Strike 3’s copyrighted works. Id. at ¶¶ 25–33. Strike 3 further alleges that VXN
`Scan used metadata called the “Info Hash” value from a .torrent file downloaded from Defendant
`Doe’s device to download a portion of the same digital media file directly from Defendant Doe’s
`device via the BitTorrent network (thus essentially emulating the distribution of digital files of
`motion pictures from Defendant Doe to another BitTorrent user via the internet). Id. at ¶ 36. A
`comparison of the digital media files apparently revealed that Defendant Doe downloaded and
`distributed copies of portions of Strike 3’s copyrighted works without authorization. Id. at ¶¶ 35–
`44.
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`Based on these foregoing allegations, on October 25, 2023, Strike 3 filed its Complaint
`against Defendant Doe alleging copyright infringement under the Copyright Act. See Dkt. 1. On
`November 9, 2023, Strike 3 filed the instant ex parte application requesting leave to serve AT&T
`with a subpoena under Fed. R. Civ. P. 45. [Dkt. 8]. Strike 3 alleges that AT&T has the ability to
`identify Defendant Doe through the IP address discovered by the investigation discussed herein,
`because Maxmind’s geolocation service has identified AT&T as the owner of the IP address named
`in the Complaint. Id. at 17. Strike 3 represents that the requested subpoena will be limited to seeking
`from AT&T the name and physical address of the individual(s) having the account associated with
`Defendant Doe’s IP address of 107.130.100.9. Id.
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`I.
`
`DISCUSSION
`LEAVE TO SERVE AN EARLY, LIMITED SUBPOENA ON AT&T.
`Pursuant to Rule 26(d)(1), a party may not seek discovery from any source prior to the
`parties’ conference required by Rule 26(f). However, per Rule 26(d)(1), the Court has authority to
`allow discovery prior to the Rule 26(f) conference and thus outside this timing limitation. See also
`Fed. R. Civ. P. 26 advisory committee’s note (1993) (“Discovery can begin earlier if authorized . .
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`. by local rule, order, or stipulation. This will be appropriate in some cases[.]”).
`The Court may authorize early discovery before the Rule 26(f) conference if the requesting
`party establishes “good cause” for the early discovery. Semitool, Inc. v. Tokyo Electron Am. Inc.,
`208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited
`discovery, in consideration of the administration of justice, outweighs prejudice to the responding
`party.” Id.
`As with all discovery matters, “Rule 26 vests the trial judge with broad discretion to tailor
`discovery narrowly and to dictate the sequence of discovery.” Crawford-El v. Britton, 523 U.S.
`574, 598 (1998). “And the court may also set the timing and sequence of discovery.” Id. at 599
`(citing Fed. R. Civ. P. 26(d)). Thus, the decision whether or not to grant early discovery under Rule
`26(d) is within the Court’s discretion. Quinn v. Anvil Corp., 620 F.3d 1005, 1015 (9th Cir. 2010)
`(“We review district court rulings on discovery matters for abuse of discretion.”). Further, a
`decision to deny early discovery under Rule 26(d) “will not be disturbed except upon the clearest
`showing that denial of discovery results in actual and substantial prejudice to the complaining
`litigant.” Med Vets, Inc. v. VIP Petcare Holdings, Inc., 811 F. App’x 422, 424 (9th Cir. 2020)
`(quoting Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). In evaluating a motion for expedited
`discovery, the District Court in Med Vets considered the following factors to determine whether
`good cause exists to justify the requested early discovery: (1) whether a preliminary injunction is
`pending; (2) the breadth of the discovery request; (3) the purpose for requesting the expedited
`discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance
`of the typical discovery process the request was made. Med Vets, Inc. v. VIP Petcare Holdings,
`Inc., No. 18-CV-02054-MMC, [Dkt. 45] at *3 (N.D. Cal. Nov. 28, 2018) (quoting Rovio Ent. Ltd.
`v. Royal Plush Toys, Inc., 907 F. Supp. 1086, 1099 (N.D. Cal. 2012)). The Ninth Circuit affirmed
`the District Court’s decision on the request for expedited discovery. Med Vets, 811 F. App’x at 424.
`A request for early discovery, such as the instant ex parte application, may arise particularly
`in a case involving alleged wrongful conduct in connection with use of the internet. As discussed
`by precedent:
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`With the rise of the Internet has come the ability to commit certain tortious acts,
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`such as defamation, copyright infringement, and trademark infringement, entirely
`on-line. The tortfeasor can act pseudonymously or anonymously and may give
`fictitious or incomplete identifying information. Parties who have been injured by
`these acts are likely to find themselves chasing the tortfeasor from Internet Service
`Provider (ISP) to ISP, with little or no hope of actually discovering the identity of
`the tortfeasor.
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`In such cases the traditional reluctance for permitting filings against John Doe
`defendants or fictitious names and the traditional enforcement of strict compliance
`with service requirements should be tempered by the need to provide injured parties
`with an (sic) forum in which they may seek redress for grievances. However, this
`need must be balanced against the legitimate and valuable right to participate in
`online forums anonymously or pseudonymously. People are permitted to interact
`pseudonymously and anonymously with each other so long as those acts are not in
`violation of the law. This ability to speak one’s mind without the burden of the
`other party knowing all the facts about one’s identity can foster open
`communication and robust debate. Furthermore, it permits persons to obtain
`information relevant to a sensitive or intimate condition without fear of
`embarrassment. People who have committed no wrong should be able to participate
`online without fear that someone who wishes to harass or embarrass them can file
`a frivolous lawsuit and thereby gain the power of the court's order to discover their
`identity.
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`Thus some limiting principals should apply to the determination of whether
`discovery to uncover the identity of a defendant is warranted.
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`Columbia Ins., 185 F.R.D. at 578 (footnote omitted).
`Columbia thus identified four factors to assist in determining whether a plaintiff has
`established good cause to conduct early discovery to identify Doe Defendants. Courts look to
`“whether the plaintiff (1) identifies the Doe defendant with sufficient specificity that the court can
`determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps
`taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion
`to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will
`permit service of process.” Zoosk Inc. v. Doe, No. 4:10-CV-04545, 2010 WL 5115670, at *2 (N.D.
`Cal. Dec. 9, 2010) (citing Columbia, 185 F.R.D. at 578–80). Additionally, the Ninth Circuit has
`relied on the first and third factors as weighing in favor of granting early discovery to determine an
`unknown defendant’s identity. See, e.g., Young v. Transp. Deputy Sheriff I, 340 F. App’x 368, 369
`(9th Cir. 2009); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson,
`177 F.3d 1160, 1163 (9th Cir. 1999).
`Applying the Columbia factors here, the Court find that all four factors weigh in favor of the
`requested, limited early discovery. First, Strike 3 sufficiently alleges enough details to enable this
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`Court to establish Defendant Doe is more than likely an actual individual who can be legally sued
`in federal court. Strike 3 alleges Defendant Doe downloaded Strike 3’s copyrighted adult motion
`pictures and distributed them via the BitTorrent network. [Dkt. 1 at ¶¶ 7–8]. Strike 3 alleges that
`one way for Defendant Doe to obtain the digital film files was to specifically direct their BitTorrent
`client to download the copyrighted media files from a source on the internet. [Dkt. 8 at 13]. The
`Court notes that Strike 3’s pleadings do not eliminate entirely the possibility that Defendant Doe
`obtained the files without using the internet, such as through some form of direct file transfer from
`a locally connected device, through a transfer from a portable memory device such as a USB drive,
`or through some form of copying from a DVD. Nevertheless, the Court acknowledges that one
`reasonably plausible means by which Defendant Doe obtained the digitized film files at issue was
`through download over the internet.
`With regard to distributing the digital film files, Strike 3 avers that Defendant Doe had to
`specifically set up their BitTorrent client to allow other BitTorrent users to obtain copies of the
`copyrighted media files from the peer-to-peer network connected via the internet to Defendant Doe’s
`computer (or other electronic device). See Dkt. 1 at 1, 6. These allegations strongly suggest
`Defendant Doe is an identifiable person, a subscriber of the IP address identified by Strike 3, and
`thus a natural person who can be legally sued in federal court. Strike 3 Holdings, LLC v. Doe, No.
`17-CV-07051-LB, 2018 WL 357287, at *2 (N.D. Cal. Jan. 10, 2018). Strike 3 alleges it traced each
`download back to Defendant Doe’s IP address geolocated in the Northern District of California,
`thereby establishing a high likelihood that this Court has jurisdiction over Defendant Doe. [Dkt. 1
`at ¶¶ 7–8].
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`Second, Strike 3 provides a detailed account of steps taken in its attempts to locate and
`identify Defendant Doe. Strike 3 alleges Defendant Doe downloaded and distributed Strike 3’s
`adult motion pictures using the IP address identified herein, and this IP address was allegedly traced
`back to the Northern District of California. Id. Strike 3 allegedly used multiple methods available
`to them to attempt to obtain Defendant Doe’s identity, including web searches, reviews of numerous
`sources of authority, and discussions with investigators and cyber security consultants. [Dkt. 8 at
`18]. Strike 3 alleges that knowing Defendant Doe’s IP address by itself is not enough to establish
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`Defendant Doe’s identity. Id. Strike 3’s expert corroborates the inability to obtain Defendant Doe’s
`identity solely from the IP address. [Dkt. 8-1 at 22 (Declaration of Patrick Paige: “Based on [his]
`experience in similar cases, Defendant’s ISP AT&T Internet is the only entity that can correlate the
`IP address to its subscriber and identify [the] Defendant.”)]. The Court finds that Strike 3’s efforts
`are sufficient to satisfy this factor. See Strike 3 Holdings LLC v. Doe, No. 18-CV-06938-WHO,
`2019 WL 402358, at *2 (N.D. Cal. Jan. 31, 2019) (finding plaintiff’s efforts sufficient, including
`web searches of the IP addresses, references to other sources of authority, and a declaration from an
`IT expert stating that the service provider was the only entity with the ability to identify the
`defendant).
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`Third, Strike 3’s Complaint could withstand a motion to dismiss because the Court concludes
`that Strike 3 sufficiently pleads copyright infringement under the Copyright Act. “To establish a
`prima facie case of direct copyright infringement, [a party] must show that he owns the copyright,
`and that [the alleged infringer] violated one of the exclusive rights set forth in 17 U.S.C. § 106.”
`Bell v. Wilmott Storage Servs., LLC, 12 F.4th 1065, 1071 (9th Cir. 2021). “In addition, direct
`infringement requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the
`defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017) (citing Fox Broad.
`Co. v. Dish Network L.L.C., 747 F.3d 1060, 1067 (9th Cir. 2013)). Section 106 of the Copyright
`Act grants copyright owners six exclusive rights: reproduction, preparation of derivative works,
`distribution, public performance, public display, and digital audio transmission of the copyrighted
`work. Fahmy v. Jay-Z, 908 F.3d 383, 393–94 (9th Cir. 2018).
`Here, Strike 3 claims ownership of the copyrights for the adult movies that Defendant Doe
`allegedly downloaded and subsequently distributed to others, all without obtaining authorization or
`license from Strike 3. [Dkt. 1 at ¶ 46]. Strike 3 alleges that “by downloading the torrent files,
`Defendant [Doe] triggered a cascade of technical operations, making Defendant [Doe] the
`‘proximate cause’ of all of the violations of Plaintiff’s copyrights.” [Dkt. 8 at 14]. Without passing
`on the ultimate merits of this case, the Court finds that at this stage Strike 3’s Complaint could
`withstand a motion to dismiss because it has established a prima facie case of copyright
`infringement.
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`Finally, Strike 3 has established that the requested, limited early discovery is likely to lead
`to identifying information which will likely reveal the identity of Defendant Doe. In order to
`establish this factor, a Plaintiff must “provide enough concrete details about who these individuals
`are or how they eventually could be identified, located, and served.” Biesenbach v. Does 1–3, No.
`21-CV-08091-DMR, 2022 WL 17371156, at *4 (N.D. Cal. July 18, 2022). Strike 3 alleges that, as
`the ISP for Defendant Doe, AT&T has information which would identify Defendant Doe. [Dkt. 1
`at ¶ 5]. AT&T allegedly has in its possession the subscriber’s name and physical address, since
`some natural person signed up for and is paying AT&T for the internet service associated with the
`IP address at issue here. [Dkt. 8-1 at 22 (Declaration of Patrick Paige: “Based on [his] experience
`in similar cases, Defendant’s ISP AT&T Internet is the only entity that can correlate the IP address
`to its subscriber and identify [the] Defendant.”)]. Strike 3 claims AT&T is in a position to provide
`this limited information in response to the requested early subpoena, and Strike 3 argues that, after
`receipt of such, it will be able to identify Defendant Doe and ultimately serve process. [Dkt. 8 at
`9]. “Even if the subscriber is not the proper defendant, learning his or her identity may allow Strike
`3 to work with the subscriber to locate that individual.” Strike 3 Holdings, 2019 WL 402358, at *3.
`Accordingly, the Court finds that Strike 3 has made a sufficient showing to satisfy this factor.
`Further, applying the good cause factors identified by the District Court in Med Vets leads
`to the same result. Med Vets, No. 18-CV-02054-MMC, [Dkt. 45] at *3, aff’d Med Vets, 811 F.
`App’x at 424. First, while a preliminary injunction is not pending, here the requested early discovery
`is needed to allow the case to proceed against an unidentified defendant. Second, Strike 3 represents
`to the Court that the breadth of the proposed discovery request is limited and narrow: the proposed
`subpoena will only seek from AT&T the name and physical address of the natural person who is the
`subscriber for the IP address at issue. Third, the purpose for requesting the expedited discovery is
`discussed above: Strike 3 alleges it needs the discovery in order to be able to identify the person
`who is Defendant Doe and thus to allow this case to go forward. Fourth, the burden on the target of
`the discovery to comply with the requests appears cabined by Strike 3’s commitment to seek only
`limited discovery from AT&T and not free-ranging discovery to try to identify Defendant Doe.
`Finally, Strike 3’s request is presented at the outset of this case and thus far in advance of the typical
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`discovery process, but this is by necessity since Strike 3 alleges it needs to identify Defendant Doe
`in order to pursue the case beyond this filing stage. In sum, in light of the District Court Med Vets
`factors, the Court finds that Strike 3 has demonstrated good cause warranting the requested, early
`and limited discovery.
`In light of the facts and evidence presented to the Court and applying these facts to the legal
`standards for early discovery, the Court finds that Strike 3 has demonstrated good cause warranting
`the requested early, limited discovery (specifically, the proposed subpoena to AT&T) to determine
`the identity of Defendant Doe. Here, in consideration of the administration of justice, the need for
`the requested discovery (to identify the defendant and allow the case to go forward) outweighs the
`prejudice to AT&T (the target of the requested discovery) in light of the limited and narrow nature
`of the requested subpoena. Semitool, 208 F.R.D. at 276. Indeed, here the copyright infringement
`claims are supported by evidence of technical investigation resulting in multiple alleged instances
`of copyright infringement linked to the one, identified IP address. Cf. id. (“It should be noted that
`courts have recognized that good cause is frequently found in cases involving claims of infringement
`and unfair competition.”). Therefore, the Court GRANTS leave to serve the limited, proposed third-
`party subpoena on AT&T prior to the Rule 26(f) conference in this matter.
`PROTECTIVE ORDER
`II.
`Courts have discretion to issue a protective order sua sponte for “good cause” in order to
`“protect a party or person from annoyance, embarrassment, oppression, or undue burden or
`expense[.]” Fed. R. Civ. P. 26(c). To establish “good cause,” there must be a demonstration of
`specific prejudice or harm that would result from the absence of a protective order. Phillips ex rel.
`Ests. of Byrd v. General Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). “[B]road
`allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy
`the Rule 26(c) test [for good cause].” Beckman Indus. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir.
`1992). With regard to a specific type of harm implicated here, the Ninth Circuit acknowledges that
`people use pseudonyms in their internet communications “when anonymity is necessary ‘to preserve
`privacy in a matter of sensitive and highly personal nature[.]’” Does I thru XXIII v. Advanced Textile
`Corp., 214 F.3d 1058, 1068 (9th Cir. 2000) (balancing “the need for anonymity against the general
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`Northern District of California
`United States District Court
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`presumption that parties’ identities are public information and the risk of unfairness to the opposing
`party”).
`Here, good cause exists to protect the privacy and rights of the person who will presumably
`be identified by AT&T (whether that person is Defendant Doe or a third party who pays for the
`internet service from AT&T for the subject IP address). In this situation, anonymity is necessary to
`preserve privacy and protect the person to be identified by AT&T from annoyance and
`embarrassment because of the sensitive and highly personal nature of adult motion pictures. See
`Strike 3 Holdings, LLC, 2018 WL 357287, at *3 (recognizing that “[a]n allegation that individually
`illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly personal
`nature, including one’s sexuality”). Further, because AT&T’s information produced in response to
`the requested subpoena may not lead to the proper subscriber, it is necessary to protect the identity
`of any potential and innocent third parties, as well as protect them from annoyance, embarrassment,
`or unfairness from deprivation of privacy. Strike 3 Holdings, LLC v. Doe, No. 23-CV-01985-AMO,
`2023 WL 3483288, at *2 (N.D. Cal. May 15, 2023).
`Considering the subscriber’s potential status as an innocent third party and the sensitive and
`personal nature of the subject matter of the suit for both the subscriber and Defendant Doe, the Court
`accordingly issues a limited protective order. Any information produced in response to the
`requested subpoena to Strike 3 by AT&T will be treated as confidential and shall be treated
`following the restrictions in and as if it were designated “Confidential” under the Northern District
`of
`California’s Model
`Protective Order
`for
`Standard
`Litigation.
`
`See
`https://www.cand.uscourts.gov/forms/model-protective-orders/. This presumptive confidential
`treatment of any such material or information produced in response to the requested subpoena shall
`continue until Defendant Doe (or any other third party identified by AT&T in response to the
`subpoena) has the opportunity to file a motion with the Court to proceed in the litigation
`anonymously and pursuant to a Stipulated Protective Order, and the Court has had a chance to rule
`on that motion. Additionally, a protective order of this nature would comport with Strike 3’s
`admitted policy of respecting privacy in these matters, and Strike 3 indicates that it does not oppose
`entry of such a protective order (but rather Strike 3 welcomes such a protective order). [Dkt. 8 at
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`Northern District of California
`United States District Court
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`Case 3:23-cv-05494-PHK Document 9 Filed 12/29/23 Page 12 of 13
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`21].
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`Accordingly in light of the showing of good cause, and in order to preserve the privacy of
`(and protect from annoyance and embarrassment to) Defendant Doe and any other third parties
`whose information may be produced by AT&T, and further in light of Strike 3’s non-opposition,
`the Court ISSUES a protective order to the limited extent that any information produced by AT&T
`in response to the requested subpoena will be treated as confidential by all parties in this matter,
`following the restrictions for “Confidential” designated material under the Court’s Model Protective
`Order for Standard Litigation. That confidential treatment shall continue until the Court rules upon
`any motion filed by Defendant Doe (or any other impacted third party) to continue confidential
`treatment of that information and, in the case of Defendant Doe, to be allowed to proceed in this
`litigation anonymously. See Strike 3 Holdings, 2018 WL 357287, at *3 (citing IO Grp., Inc. v. Does
`1–19, No. C 10-03851 SI, 2010 WL 5071605, at *2 (N.D. Cal. Dec. 7, 2010)). If Defendant Doe or
`any other third party fails to file a motion for leave to proceed anonymously within thirty days after
`receiving notice from Strike 3 that AT&T has produced their information, Strike 3 may file a motion
`seeking withdrawal or modification of the limited protective order. Cf. Strike 3 Holdings, 2018 WL
`357287 at *3 (citing IO Grp., 2010 WL 5071605, at *3). The Court further