Case 4:19-cv-03847-YGR Document 8 Filed 08/15/19 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
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`vs.
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`JOHN DOE SUBSCRIBER ASSIGNED IP
`ADDRESS 98.248.99.184,
`Defendant.
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`CASE NO. 19-cv-03847-YGR
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`
`ORDER GRANTING EX PARTE
`APPLICATION FOR LEAVE TO SERVE A
`THIRD PARTY SUBPOENA PRIOR TO A RULE
`26(F) CONFERENCE
`Re: Dkt. No. 7
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`Now before the Court is plaintiff Strike 3 Holdings, LLC’s Ex Parte Application for Leave
`to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. (Dkt. No. 7 (“Motion”).)
`Because defendant John Doe subscriber assigned IP address 98.248.99.184 (herein “Doe
`defendant”) has not been identified or served, no opposition has been filed. Having reviewed
`plaintiff’s motion and all supporting documents, the Court GRANTS the motion for the reasons set
`forth below.
`I.
`BACKGROUND
`Plaintiff alleges that it is the owner of several “award winning, critically acclaimed adult
`motion pictures” distributed through its adult brands Blacked, Blacked Raw, Tushy, and Vixen.
`(Dkt. No. 1 (“Compl.”) ¶¶ 2, 3.) The motion pictures are registered with the United States
`Copyright Office or have complete applications pending. (Id. ¶¶ 32, 33.)
`On July 3, 2019, plaintiff filed a complaint against Doe defendant, who uses the IP address
`98.248.99.184, alleging one claim for copyright infringement under the Copyright Act.
`(Id. ¶¶ 35–40.) Plaintiff alleges that Doe defendant has illegally infringed and distributed 65 of its
`copyrighted movies over the BitTorrent File Distribution Network for an extended period of time.
`(Id. ¶¶ 4, 24.) Plaintiff describes the BitTorrent network as a “system designed to quickly
`distribute large files over the Internet.” (Id. ¶ 18.) Plaintiff further alleges that Doe defendant,
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`United States District Court
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`who “attempted to hide this theft by infringing [p]laintiff’s content anonymously,” can be
`identified by his or her Internet Service Provider (“ISP”), Comcast Cable Communications, LLC
`(“Comcast Cable”), through his or her IP address 98.248.99.184. (Id. ¶ 5.)
`On July 24, 2019, plaintiff filed the instant ex parte motion asking the Court for leave to
`serve Comcast Cable with a subpoena under Federal Rule of Civil Procedure 45. (Motion at 2.)
`Plaintiff states that the subpoena will be limited to demanding the name and address of the
`individual(s) associated with Doe defendant’s IP address. (Id.)
`II.
`LEGAL FRAMEWORK
`A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
`witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the
`Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
`See, e.g., Strike 3 Holdings, LLC v. Doe, No. 18CV232 GPC (BGS), 2018 WL 2329726, at *2
`(S.D. Cal. May 22, 2018); Strike 3 Holdings, LLC v. Doe, 18cv47-WQH (RBB), 2018 WL
`1427002, at *2 (S.D. Cal. Mar. 22, 2018); Strike 3 Holdings, LLC v. Doe, No. 17-CV-07051-LB,
`2018 WL 357287, at *2 (N.D. Cal. Jan. 10, 2018); Io Grp., Inc. v. Does 1-65, No. 10-4377 SC,
`2010 WL 4055667, at *1 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc.,
`208 F.R.D. 273, 275 (N.D. Cal. 2002). “Good cause may be found where the need for expedited
`discovery, in consideration of the administration of justice, outweighs the prejudice to the
`responding party.” Semitool, 208 F.R.D. at 276.
`In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe
`defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe
`defendant with sufficient specificity such 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) shows that
`the discovery is reasonably likely to lead to identifying information that will permit service of
`process. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999).
`“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
`plaintiff should be given an opportunity through discovery to identify the unknown defendants,
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`Northern District of California
`United States District Court
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`unless it is clear that discovery would not uncover the identities, or that the complaint would be
`dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (some
`modifications in original) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
`III. DISCUSSION
`A. Whether Plaintiff Establishes Good Cause for Early Discovery
`The Court addresses the four seescandy.com factors in turn.
`1.
`Identification of Doe Defendant with Sufficient Specificity
`First, plaintiff has the burden to identify Doe defendant with enough specificity to establish
`that Doe defendant is a real person subject to the Court’s jurisdiction. “[A] plaintiff identifies Doe
`defendants with sufficient specificity by providing the unique IP addresses assigned to an
`individual defendant on the day of the allegedly infringing conduct, and by using ‘geolocation
`technology’ to trace the IP address to a physical point of origin.” 808 Holdings, LLC v. Collective
`of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, No.
`12cv000186 MMA(RBB), 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012).
`Plaintiff has provided a declaration stating that it retained IPP International UG (“IPP”), a
`company that “monitors the BitTorrent file distribution network for the presence of copyrighted
`works” and uses software to “identif[y] Internet Protocol (‘IP’) addresses that are being used by
`infringers to distribute copyrighted works within the BitTorrent File Distribution Network” to
`compile data relating to the IP address at issue. (Dkt. No. 7-1, Ex. B at ECF 9-11, Declaration of
`Tobias Fieser ISO Plaintiff’s Ex Parte Application (“Fieser Decl.”) ¶ 5.) IPP determined that Doe
`defendant’s IP address, 98.248.99.184, distributed multiple pieces of plaintiff’s copyrighted
`movies (see Dkt. No. 1-1) and that the address “is associated with significant long term BitTorrent
`use.” (Fieser Decl. ¶ 12.) The movie pieces were recorded in a “packet capture” (“PCAP”), a
`forensically sound interface for recording network traffic that records the time which correlates to
`assignment logs maintained by ISPs in the United States to track which IP address is assigned to
`which customer at any given time. (Id. ¶ 8.) Mr. Fieser explains that digital files can be identified
`by their “Cryptographic Hash Value[s]” and that IPP was able to determine that the files being
`distributed by Doe defendant’s IP address “have a unique identifier of the Cryptographic Hash
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`Northern District of California
`United States District Court
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`outlined on Exhibit A [to plaintiff’s complaint].” (Id. ¶ 10.)
`Plaintiff also retained Philip Pasquale, a tech advisor with 7 River Systems, LLC, a
`“Maryland based cyber security firm specializing in network security, data breaches, and the
`protection of secured information transmitted across networks.” (Dkt. No. 7-1, Ex. C at ECF 13-
`15, Declaration of Philip Pasquale ISO Plaintiff’s Ex Parte Application (“Pasquale Decl.”) ¶ 3.)
`Mr. Pasquale was retained to “analyze and retain forensic evidence captured by [IPP].” (Id. ¶ 6.)
`He used a program named Wireshark to view the contents of the PCAP provided by IPP and
`confirmed that IPP recorded a transaction with IP address 98.248.99.184 on May 14, 2019 at
`12:22:20 UTC. (Id. ¶¶ 8, 9.) Mr. Pasquale notes that based on his experience, “[Doe]
`[d]efendant’s ISP Comcast Cable is the only entity that can correlate the IP address to its
`subscriber and identify [Doe] [d]efendant as the person assigned the IP address 98.248.99.184
`during the time of the alleged infringement.” (Id. ¶ 10.)
`In its complaint, plaintiff further explains that it used “IP address geolocation by Maxmind
`Inc. (‘Maxmind’), an industry-leading provider of IP address intelligence and online fraud
`detection tools, to determine that [Doe] [d]efendant’s IP address traced to a physical address in
`this District.” (Compl. ¶ 9.)
`Because plaintiff has provided the Court with the unique IP address and the dates and
`times of connection, the name of the ISP that provided Internet access for the user of the identified
`IP address, and used geolocation technology, the Court finds that plaintiff has made a satisfactory
`showing that Doe defendant is a real person behind the alleged infringing conduct who would be
`subject to suit in federal court.
`2.
`Previous Steps Taken to Locate and Identify Doe Defendant
`To obtain leave to take early discovery, plaintiff is also required to describe the steps taken
`to locate and identify Doe defendant. Plaintiff searched for Doe defendant’s IP address using
`“various web search tools” and reviewed numerous sources such as “legislative reports, agency
`websites, informational technology guides, governing case law, etc.” (Motion at 10-11.) Plaintiff
`also retained an investigator to identify the IP address of BitTorrent users who were allegedly
`reproducing plaintiff’s copyrighted material. (See generally Fieser Decl.; see also generally
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`Pasquale Decl.) Although plaintiff’s investigator obtained Doe defendant’s IP address, “Comcast
`Cable is the only entity that can correlate the IP address to its subscriber and identify [Doe]
`[d]efendant as the person assigned the IP address 98.248.99.184.” (Pasquale Decl. ¶ 10.) The
`Court therefore finds that plaintiff has made a good faith effort to locate and identify Doe
`defendant.
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`Ability to Withstand a Motion to Dismiss
`3.
`Plaintiff must also show that its copyright claim could withstand a motion to dismiss. A
`plaintiff “‘must satisfy two requirements to present a prima facie case of direct infringement: (1)
`[he or she] must show ownership of the allegedly infringed material and (2) [he or she] must
`demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
`holders under 17 U.S.C. § 106.’” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
`Cir. 2007) (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see
`also 17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to
`reproduce, distribute, publicly display, perform, and create derivative works of the copyrighted
`work. Direct copyright infringement does not require intent or any particular state of mind. Fox
`Broad. Co. Inc. v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098–99 (C.D. Cal. 2012); Religious
`Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995).
`Plaintiff alleges that it holds the copyrights for the adult motion pictures that Doe
`defendant downloaded (and thus copied) and distributed without plaintiff’s permission. (Compl.
`¶¶ 36–38.) Accordingly, plaintiff has sufficiently alleged a prima facia claim for direct copyright
`infringement and could withstand a motion to dismiss.
`4.
`Whether Requested Discovery Will Lead to Identifying Information
`Finally, plaintiff is required to demonstrate that the discovery it seeks is reasonably likely
`to lead to identifying information that will permit service of process on Doe defendant. As
`explained above, plaintiff’s investigation has revealed a unique IP address. Because the only
`entity able to correlate the IP address to a specific individual is Comcast Cable, the requested Rule
`45 subpoena would lead to information making physical service of process possible.
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`Case 4:19-cv-03847-YGR Document 8 Filed 08/15/19 Page 6 of 8
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`B.
`Protective Order
`“[U]nder Rule 26(c), the Court may sua sponte grant a protective order for good cause
`shown.” McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). The Court
`issues the limited protective order described below because “the ISP subscriber may be an
`innocent third party, and the subject matter of the suit deals with sensitive and personal matters.”
`Strike 3 Holdings, 2018 WL 357287, at *3.
`Here, as has been discussed by other courts in this district, the ISP subscriber may not be
`the individual who infringed upon plaintiff’s copyright. See, e.g., id. at *3; Pac. Century Int’l Ltd.
`v. Does 1-101, No. C-11-02533 (DMR), 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011) (“[I]n
`some cases the Subscriber and the Doe Defendant [will] most likely not [be] the same
`individual.”) (internal quotation marks omitted) (alterations and emphasis in original); IO Grp.,
`Inc. v. Does 1-19, No. C 10-03851 SI, 2011 WL 772909, at *1 (N.D. Cal. Mar. 1, 2011) (granting
`the plaintiff additional time to identify and serve the true defendant where a subscriber asserted
`that he did not infringe plaintiff’s work, suggesting that someone else used his IP address to so
`infringe).
`Additionally, requests for pseudonymity have been granted when anonymity is necessary
`to preserve privacy in a matter of a sensitive and highly personal nature. See Does 1 Thru XXIII v.
`Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). “An allegation that an individual
`illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly
`personal nature, including one’s sexuality.” Strike 3 Holdings, 2018 WL 357287, at *3.
`Accordingly, the Court ISSUES a protective order to the limited extent that any information
`regarding Doe defendant released to plaintiff by Comcast Cable will be treated as confidential for
`a limited duration. See, e.g., IO Grp., Inc. v. Does 1-19, No. C 10-03851 SI, 2010 WL 5071605,
`at *2 (N.D. Cal. Dec. 7, 2010); see also, e.g., Strike 3 Holdings, 2018 WL 357287, at *3.
`Specifically, plaintiff must not disclose publicly that information until Doe defendant has the
`opportunity to file a motion with this Court to be allowed to proceed in this litigation
`anonymously and that motion is ruled on by the Court. If Doe defendant fails to file a motion for
`leave to proceed anonymously within 30 days after his or her information is disclosed to
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`plaintiff’s counsel, this limited protective order will expire. Given the “potential embarrassment
`associated with being publicly accused of having illegally downloaded adult motion pictures,”
`Strike 3 Holdings, 2018 WL 357287, at *3, if Doe defendant includes identifying information
`within his or her request to proceed anonymously, the Court finds good cause to order the papers
`filed under seal until it has the opportunity to rule on the request. See IO Grp., 2010 WL 5071605,
`at *3 (permitting party to file under seal a declaration with identifying information). If Doe
`defendant includes identifying information with his or her request to proceed anonymously and the
`request is placed under seal, the Court will direct Doe defendant to submit a copy of the under-seal
`request to plaintiff and will ensure that plaintiff has time to respond.
`IV. CONCLUSION
`In light of the foregoing, the Court GRANTS plaintiff’s ex parte motion. It is hereby
`ORDERED that:
`1. Plaintiff may serve a subpoena pursuant to Rule 45 on Comcast Cable that seeks only
`the true name and address of Doe defendant. The subpoena must have a copy of this Order
`attached.
`2. Comcast Cable will have 30 days from the date of service upon it to serve Doe
`defendant with a copy of the subpoena and a copy of this Order. Comcast Cable may serve Doe
`defendant using any reasonable means, including written notice sent to his or her last known
`address, transmitted either by first-class mail or via overnight service.
`3. Doe defendant will have 30 days from the date of service upon him or her to file any
`motions contesting the subpoena (including a motion to quash or modify the subpoena) with this
`Court. If that 30-day period lapses without Doe defendant contesting the subpoena, Comcast
`Cable will have 10 days to produce the information responsive to the subpoena to plaintiff.
`4. Any subpoenaed information must be preserved pending the resolution of any timely-
`filed motion to quash.
`5. Comcast Cable must confer with plaintiff and may not assess any unreasonable charge
`in advance of providing the information requested in the subpoena. Should Comcast Cable elect
`to charge for the costs of production, it must provide plaintiff (i) a billing summary and (ii) cost
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`Case 4:19-cv-03847-YGR Document 8 Filed 08/15/19 Page 8 of 8
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`reports that serve as a basis for such billing summary and any costs claimed by Comcast Cable.
`6. Plaintiff must serve a copy of this Order along with any subpoenas issued pursuant to
`this Order to the necessary entities.
`7. Any information disclosed to plaintiff in response to a Rule 45 subpoena may be used
`by plaintiff solely for the purpose of protecting its rights as set forth in its complaint.
`This Order terminates Docket Number 7.
`IT IS SO ORDERED.
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`Dated: August 15, 2019
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
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