Case 4:24-cv-00437-YGR Document 8 Filed 02/15/24 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`EUREKA 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 70.252.19.216,
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`Defendant.
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`Case No. 24-cv-00437-YGR (RMI)
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`ORDER ON EX PARTE APPLICATION
`FOR LEAVE TO SERVE THIRD-
`PARTY SUBPOENA PRIOR TO RULE
`26(F) CONFERENCE
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`Re: Dkt. No. 6
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`INTRODUCTION
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`“Plaintiff, Strike 3 Holdings, LLC (“Strike 3” or “Plaintiff”) is the owner of original,
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`award-winning motion pictures featured on its brand’s subscription-based adult websites.” Appl.
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`(Dkt. 6) at 9. Plaintiff alleges that the Doe defendant (or “Defendant”) here — who uses the IP
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`address 70.252.19.216 — infringed on Plaintiff’s content by illegally distributing a large number
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`of Plaintiff’s movies. Id. Plaintiff came to this information by way of proprietary forensic software
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`which identified the IP address, but not the Defendant’s true identity. Id. Now, Plaintiff “seeks
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`leave to serve limited, immediate discovery on Defendant’s ISP, AT&T Internet (or “ISP”) so that
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`Plaintiff may learn Defendant’s identity, further investigate Defendant’s role in the infringement,
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`and effectuate service.” Id. For the following reasons, the court finds that Plaintiff has shown good
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`cause to serve a Rule 45 subpoena, and the court grants the application.
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`DISCUSSION
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`In the interests of justice, a court may authorize early discovery before the Rule 26(f)
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`conference. Fed. R. Civ. P. 26(d). “Courts within the Ninth Circuit generally consider whether a
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`plaintiff has shown ‘good cause’ for early discovery.” Strike 3 Holdings, LLC v. Doe, No. 23-CV-
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`United States District Court
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`Case 4:24-cv-00437-YGR Document 8 Filed 02/15/24 Page 2 of 5
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`04339-RS, 2023 WL 6542326, at *1 (N.D. Cal. Sept. 22, 2023). “In evaluating whether a plaintiff
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`establishes good cause to learn the identity of a Doe defendant through early discovery, courts
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`examine whether the plaintiff: (1) identifies the Doe defendant with sufficient specificity that the
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`court can determine if the defendant is a real person who can be sued in federal court; (2) recounts
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`the steps taken to locate and identify the defendant; (3) demonstrates the action can withstand a
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`motion to dismiss; and (4) shows the discovery is reasonably likely to lead to identifying
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`information that will permit service of process.” Id. (citing Columbia Ins. Co. v. seescandy.com,
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`185 F.R.D. 573, 578–80 (N.D. Cal. 1999)). “‘[W]here the identity of alleged defendants [is not]
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`known prior to the filing of a complaint[,] the plaintiff should be given an opportunity through
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`discovery to identify the unknown defendants, unless it is clear that discovery would not uncover
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`the identities, or that the complaint would be dismissed on other grounds.’” Strike 3 Holdings,
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`LLC v. Doe, No. 23-CV-06675-LB, 2024 WL 308260, at *2 (N.D. Cal. Jan. 26, 2024) (quoting
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`Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)).
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`Here, Plaintiff has established good cause for early discovery. First, Plaintiff has identified
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`the Doe defendant with sufficient specificity that the court can determine that he or she is a real
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`person who can be sued in federal court. The Complaint alleges that the Doe defendant
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`downloaded Plaintiff’s copyrighted adult motion pictures and distributed them over the BitTorrent
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`network. Compl. (dkt 1) at 4.1 Using its proprietary forensic software, Plaintiff alleges that it
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`established “direct TCP/IP connections with Defendant’s IP address.” Id. These alleged facts
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`indicate that the Doe defendant is an identifiable person who likely is the primary subscriber of the
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`IP address or someone who resides with and is known to the subscriber. Using geolocation
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`technology, Plaintiff has traced the Doe defendant’s IP address to a physical address within the
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`Northern District of California, thus giving the court jurisdiction over the Doe defendant and
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`Plaintiff’s federal claim. Id. at 2-3.
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`Second, Plaintiff has sufficiently established that while it can identify the unique IP
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`address as the one from which the Doe defendant downloaded and distributed its movies, Plaintiff
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`1 “[A]t this stage, the truth of Strike 3’s allegations must be assumed, and all reasonable inferences must be
`drawn in its favor.” Strike 3 Holdings, LLC, 2023 WL 6542326, at *2.
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`Northern District of California
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`United States District Court
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`Case 4:24-cv-00437-YGR Document 8 Filed 02/15/24 Page 3 of 5
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`is not able to specifically identify the Doe defendant without the issuance of this subpoena. Third,
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`Plaintiff has demonstrated that its copyright claim could withstand a motion to dismiss. A plaintiff
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`“must satisfy two requirements to present a prima facie case of direct infringement: (1) [he or she]
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`must show ownership of the allegedly infringed material and (2) [he or she] must demonstrate that
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`the alleged infringers violate at least one exclusive right granted to copyright holders under 17
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`U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007); see also
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`17 U.S.C. § 501(a). Plaintiff sufficiently alleges that it owns a valid copyright in the “Works,
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`which [are] an original work of authorship” that are registered with the United States Copyright
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`Office, and that the Doe Defendant copied and distributed the Works without authorization,
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`permission, or consent. Compl. (Dkt. 1) 6-7. And Fourth, Plaintiff has shown that the discovery it
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`seeks is reasonably likely to lead to identifying information that will permit service of process on
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`the Doe defendant. Accordingly, early discovery is proper and in the interests of justice.
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`PROTECTIVE ORDER
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`Here, for the reasons stated by the court in Strike 3 Holdings, LLC v. Doe, No. 23-CV-
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`06675-LB, 2024 WL 308260, at *3 (N.D. Cal. Jan. 26, 2024) the undersigned will also issue a
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`limited duration protective order as follows:
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`Any information regarding the Doe defendant released to Strike 3 by the ISP will be
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`treated as confidential for a limited duration. Strike 3 must not publicly disclose that information
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`until the Doe defendant has had the opportunity to file a motion with this court to be allowed to
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`proceed in this litigation anonymously and that motion is ruled upon by the court. Doe defendant
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`may move to file such a motion under seal pursuant to Civil Local Rule 79-5. If the Doe defendant
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`fails to file a motion for leave to proceed anonymously within 30 days after his or her information
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`is disclosed to Strike 3’s counsel, this limited protective order will expire.
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`Case 4:24-cv-00437-YGR Document 8 Filed 02/15/24 Page 4 of 5
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`CONCLUSION
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`Accordingly, the court GRANTS Plaintiff’s Ex Parte Application for Leave to Serve a
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`Third Party Subpoena Prior to a Rule 26(f) Conference with respect to the John Doe subscriber
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`assigned IP address 70.252.19.216 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 AT&T Internet to obtain the Doe defendant’s true name and addresses. The
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`subpoena must have a copy of this order attached. Plaintiff may also serve a Rule 45
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`subpoena in the same manner as above on any service provider that is identified in
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`response to a subpoena as a provider of Internet services to Defendant; the same
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`requirements laid out for AT&T Internet in this Order will also apply to any follow-on
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`orders pursuant hereto.
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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
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`order. The ISP may serve the Doe defendant using any reasonable means, including written
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`notice sent to his or her last known address, transmitted either by first-class mail or via
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`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
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`quash or modify the subpoena) with the court that issued the subpoena. If that 30-day
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`period lapses without the Doe defendant contesting the subpoena, the ISP will have 10
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`days to produce the 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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`Case 4:24-cv-00437-YGR Document 8 Filed 02/15/24 Page 5 of 5
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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
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`information requested in the subpoena. The ISP that receives a subpoena and elects to
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`charge for the costs of production must provide a billing summary and cost reports that
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`serve as a basis for such billing 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
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`any subpoenas issued pursuant to this order to the necessary entities.
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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
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`rights as set forth in its complaint.
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`IT IS SO ORDERED.
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`Dated: February 15, 2024
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`ROBERT M. ILLMAN
`United States Magistrate Judge
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