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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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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
`70.95.33.145,
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`Defendant.
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` Case No.: 20cv948-WQH (MSB)
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`ORDER GRANTING PLAINTIFF’S EX
`PARTE APPLICATION FOR LEAVE TO
`SERVE A THIRD-PARTY SUBPOENA
`PRIOR TO A RULE 26(f) CONFERENCE
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`On July 1, 2020, Plaintiff Strike 3 Holdings (“Plaintiff”) filed an Ex Parte Application
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`for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (“Ex Parte
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`Application”). (ECF No. 3.) Plaintiff seeks to subpoena Defendant John Doe’s
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`(“Defendant”) Internet Service Provider (“ISP”) Spectrum for “limited, immediate
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`discovery . . . so that Plaintiff may learn Defendant’s identity [and] further investigate
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`Defendant’s role in the infringement and effectuate service.” (ECF No. 3-1 at 7.)
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`Because the Defendant has not been identified, no opposition or reply briefs have been
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`filed. For the following reasons, the Ex Parte Application for Leave to Serve a Third-
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`Party Subpoena Prior to a Rule 26(f) Conference is GRANTED.
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`/ / /
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`/ / /
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`20cv948-WQH (MSB)
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`Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.80 Page 2 of 10
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`I. BACKGROUND
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`Plaintiff purports to be the registered owner of certain copyrighted motion
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`pictures. (ECF No. 1 at 1.) On May 21, 2020, Plaintiff filed a Complaint alleging that
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`Defendant John Doe, an internet subscriber assigned Internet protocol (“IP”) address
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`70.95.33.145, used the BitTorrent file distribution network to illegally download and
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`distribute over forty of Plaintiff’s copyrighted works over an extended period of time.
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`(Id. at 2.) Plaintiff alleges that it used its infringement detection system, VXN Scan, to
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`discover that Defendant used the BitTorrent file network to illegally download and
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`distribute Plaintiff’s copyrighted motion pictures. (ECF No. 3-2 at 20.)
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`Initially, Plaintiff moved to discover Defendant’s identity “utilizing a state court
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`procedure in Florida where [Plaintiff’s] infringement detection servers are located.”
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`(ECF No. 1 at 5.) However, “Defendant objected asserting that the action is more
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`properly litigated in the federal court of his or her domicile.” (Id.) Plaintiff is amenable
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`to litigating the matter in Federal Court and thus initiated this action pursuant to 28
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`U.S.C. § 1331 and 28 U.S.C. § 1338. (Id. at 2.)
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`On July 1, 2020, Plaintiff filed the instant Ex Parte Application to seek leave to
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`serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s ISP,
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`Spectrum. (ECF No. 3-1 at 8.) Plaintiff maintains that the Rule 45 subpoena “will only
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`demand the true name and address of Defendant” and Plaintiff “will only use this
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`information to prosecute the claims made in its Complaint.” (Id.) Plaintiff further claims
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`that “[w]ithout this information, Plaintiff cannot serve Defendant nor pursue this
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`lawsuit and protect its copyrights.” (Id.)
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`II.
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`LEGAL STANDARD
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`Generally, formal discovery is not permitted before the parties have conferred
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`pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). However,
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`courts have made exceptions “in rare cases . . . permitting limited discovery to ensue
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`after filing of the complaint to permit the plaintiff to learn the identifying facts
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`necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185
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`Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.81 Page 3 of 10
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`F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
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`1980)). Courts in the Ninth Circuit apply a “good cause” standard to decide whether to
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`permit early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76
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`(N.D. Cal. 2002). “Good cause” is established “where the need for expedited discovery,
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`in consideration of the administration of justice, outweighs the prejudice to the
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`responding party.” Id.
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`District courts in the Ninth Circuit have held that “when the defendants’ identities
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`are unknown at the time the complaint is filed, courts may grant plaintiffs leave to take
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`early discovery to determine the defendants’ identities ‘unless it is clear that discovery
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`would not uncover the identities, or that the complaint would be dismissed on other
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`grounds.’” 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash
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`E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12CV00186 MMA(RBB), 2012
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`WL 12884688 (S.D. Cal. May 8, 2012) (citing Gillespie, 629 F.2d at 642). “A district
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`court’s decision to grant discovery to determine jurisdictional facts is a matter of
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`discretion.” Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo
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`Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)).
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`The Ninth Circuit typically applies a three-factor test when considering motions
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`for early discovery to identify Doe defendants. Columbia Ins. Co., 185 F.R.D. at 578-80.
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`First, plaintiffs should be able to “identify the missing party with sufficient specificity []
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`that the Court can determine that [the] defendant is a real person or entity who could
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`be sued in federal court.” Id. at 578. Second, plaintiffs “should identify all previous
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`steps taken to locate the elusive defendant” to ensure “that [the movant has made] a
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`good faith effort to comply with the requirements of the service of process and
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`specifically identifying defendants.” Id. at 579. Third, the moving party “should
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`establish to the Court’s satisfaction that plaintiff’s suit against defendant could
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`withstand a motion to dismiss.” Id.; see Gillespie, 629 F.2d at 642 (stating early
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`discovery to identify unknown defendants should be permitted unless the complaint
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`would be dismissed on other grounds). In addition to satisfying all three factors,
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`Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.82 Page 4 of 10
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`plaintiffs should include “reasons justifying the specific discovery requested [and]
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`identification of a limited number of persons or entities on whom discovery process
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`might be served and for which there is a reasonable likelihood that the discovery
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`process will lead to identifying information about defendant that would make service of
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`process possible.” Columbia Ins. Co., 185 F.R.D. at 580; see Gillespie, 629 F.2d at 642
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`(explaining that early discovery is precluded if it is not likely to provide the identity of
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`the defendant.). These safeguards are intended to ensure that early discovery “will only
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`be employed in cases where the plaintiff has in good faith exhausted traditional avenues
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`for identifying a civil defendant pre-service, and will prevent the use of this method to
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`harass or intimidate.” Id. at 578.
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`III. ANALYSIS
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`A.
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`Identification of Defendant with Sufficient Specificity
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`For the Court to grant Plaintiff’s Ex Parte Application, Plaintiff must first identify
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`Defendant with enough specificity to allow the Court to determine that Defendant is a
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`real person who could be subject to the jurisdiction of this Court. See Columbia Ins.,
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`185 F.R.D. at 578. Courts in the Ninth Circuit have held that “a plaintiff identifies Doe
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`defendants with sufficient specificity by providing the unique IP addresses assigned to
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`an individual defendant on the day of the allegedly infringing conduct, and by using
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`‘geolocation technology’ to trace the IP addresses to a physical point of origin.” 808
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`Holdings, LLC, 2012 WL 12884688, at *4 (quoting Openmind Solutions, Inc. v. Does 1-39,
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`No. C 11-3311 MEJ, 2011 WL 4715200 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t, LLC v.
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`Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986 (N.D. Cal. June 21, 2011)). Therefore,
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`in order for Plaintiff to identify Defendant with sufficient specificity, it is critical that
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`Plaintiff identify that there is an actual human involved in the downloading and sharing
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`of Plaintiff’s allegedly infringed works.
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`First, Plaintiff submitted the Declaration of David Williamson, an Information
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`Systems and Management Consultant, wherein Mr. Williamson claims that he used
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`Plaintiff’s infringement detection system, VXN Scan, to identify IP addresses that
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`Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.83 Page 5 of 10
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`infringe upon Plaintiff’s movies through the BitTorrent protocol. (ECF No. 3-2 at 9.)
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`Further, the BitTorrent functions that Plaintiff accuses Defendant of using require
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`human operation. See Christopher Civil, Mass Copyright Infringement Litigation: Of
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`Trolls, Pornography, Settlement and Joinder, 30 Syracuse J. Sci. & Tech. L. 2, 12 (2014)
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`(“BitTorrent transfers do not involve a centralized server that hosts or transfers the data
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`files in question. Instead, BitTorrent involves users interacting directly with other users
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`to upload and download the content.”). Therefore, it becomes clear that an actual
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`human was involved in the downloading and sharing of Plaintiff’s allegedly infringed
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`works.
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`Second, Plaintiff submitted the Declaration of Patrick Paige, a managing member
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`at Computer Forensics, LLC, wherein Mr. Paige contends that he utilized Packet Capture
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`(“PCAP”) and VXN Scan to connect Defendant’s IP address to the alleged “piece of an
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`infringing copy of Plaintiff’s works . . . .” (ECF No. 3-2 at 21.) Mr. Paige further asserts
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`that “[t]he PCAP contains a record data concerning that transaction, including, but not
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`limited to, the [IP] Addresses used in the network transaction, the date and time of the
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`network transaction, the port number used to accomplish each network transaction,
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`and the Info Hash value that the VXN Scan used as the subject of its request for data.”
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`(Id.) Mr. Paige contends that the contents of the PCAP confirm that the infringing
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`activity connected to the “IP address 70.95.33.143 was initiated at 02/05/2020 12:49:23
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`UTC.” (Id.) Mr. Paige concludes that “the PCAP evidence shows that within that
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`transaction, IP address 70.95.33.145 uploaded a piece or pieces of a file corresponded
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`to hash value [representing Plaintiff’s works] to VXN Scan.” (Id.) This date and time
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`correspond with the date and time one of Plaintiff’s works were allegedly illegally
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`downloaded according to Exhibit A of Plaintiff’s Complaint. (ECF No. 1-2 at 1.)
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`In addition, Plaintiff submitted the Declaration of Emilie Kennedy, Plaintiff’s in-
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`house General counsel, wherein Ms. Kennedy asserts geolocation was done by an
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`unspecified person to identify the location of Defendant on three separate occasions.
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`(ECF No. 3-2 at 30.) On the first occasion, Ms. Kennedy asserts “[a]fter [Plaintiff]
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`Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.84 Page 6 of 10
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`received infringement data from VXN Scan identifying IP address 70.95.33.145 as
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`infringing its works, the IP address was automatically inputted into Maxmind’s
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`Geolocation Database . . . on August 6, 2019 . . . .” (Id.) Ms. Kennedy contends that “the
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`Maxmind Database, a geolocation technology, [was used] to trace Defendant’s IP
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`address to a geographic area within this Court’s jurisdiction. (Id.) On the second
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`occasion, Ms. Kennedy claims “[p]rior to filing its Complaint, Strike 3 again inputted IP
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`address 70.95.33.145 into the Maxmind Database and confirmed that IP address
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`70.95.33.145 continued to trace to this District.” (Id.) On the final occasion, Ms.
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`Kennedy asserts “before filing this declaration, [Plaintiff] inputted IP address
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`70.95.33.145 again into the Maxmind Database and confirmed that it traces to San
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`Diego, California.” (Id.) Attached as Exhibit 1 to Ms. Kennedy’s Declaration is a chart
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`reflecting the results of the third and final Maxmind Database search, showing that the
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`IP address alleged to be involved in the illegal downloads and confirms the location of
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`San Diego, CA. (Id. at 33.)
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`Plaintiff has provided sufficient information about infringing activity tied to
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`Defendant’s unique IP address, the specific date and time associated with the activity,
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`the name of the ISP for the user of the IP address, and the location of the activity.
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`Therefore, Plaintiff has demonstrated with sufficient specificity that Defendant is a real
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`person or entity that falls within the jurisdiction of this court. See Criminal Prods., Inc. v.
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`Doe-72.192.163.220, No. 16-CV-2589 WQH (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov.
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`18, 2016) (holding the sufficient specificity threshold is satisfied when the IP address
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`identified by Maxmind geolocation services identifies a physical location within the
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`court’s jurisdiction.).
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`B.
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`Good Faith Efforts to Identify Defendant
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`For the Court to grant Plaintiff’s Ex Parte Application, Plaintiff must also
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`demonstrate that it has taken previous steps to locate and serve the Defendant. See
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`Columbia Ins. Co., 185 F.R.D. at 579. Although Plaintiff maintains that it attempted to
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`identify Defendant by searching Defendant’s IP address “on various web search tools,
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`including basic search engines like http://www.google.com,” Plaintiff does not submit
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`evidence supporting this claim. (See ECF No. 3-1 at 14.) However, as aforementioned in
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`Ms. Kennedy’s Declaration, Plaintiff did take substantial steps to locate the Defendant’s
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`IP address, and identify Defendant’s ISP. (ECF No. 3-2 at 30.) Despite these efforts,
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`Plaintiff was unable to correlate the IP address to Defendant’s identity. Plaintiff
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`maintains that it has been “unable to identify any other way to go about obtaining the
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`identities of its infringers and does not know how else it could possibly enforce its
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`copyrights from illegal piracy over the Internet.” (ECF No. 3-1 at 14.) The Court
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`therefore finds that Plaintiff made a good faith effort to identify, locate, and serve the
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`Defendant. See Malibu Media, LLC v. John Does 1 through 6, No. 12-CV-1355-LAB DHB,
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`2012 WL 4471538, at *3 (S.D. Cal. Sept. 26, 2012) (finding the plaintiff’s efforts to
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`identify Doe defendant were sufficient because “there is no other way for [p]laintiff to
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`obtain [d]efendants’ identities, except by serving a subpoena on [d]efendants’ ISPs
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`demanding it.”); see also, e.g., Digital Sin, Inc. v. Does 1-5698, No. C 11-04397 LB, 2011
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`WL 5362068, at *2 (N.D. Cal. Nov. 4, 2011) (finding the plaintiff’s attempts to identify
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`and locate the defendant sufficient when the plaintiff “investigated and collected data
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`on unauthorized distribution of copies of the [alleged infringed work] on BitTorrent-
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`based peer-to-peer network”).
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`C. Whether Suit Could Withstand a Motion to Dismiss
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`For the Court to grant Plaintiff’s Ex Parte Application, Plaintiff must also show that
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`the complaint could withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at
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`579. A suit may be dismissed pursuant to Rule 12(b) on several bases. Of all the bases
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`that bear dismissal, those relevant here are lack of subject matter jurisdiction, lack of
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`personal jurisdiction, and failure to state a claim. Fed. R. Civ. P. 12(b)(1), (2), (6).
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`Plaintiff’s Complaint alleges that “[t]his Court has subject matter jurisdiction over this
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`action pursuant to 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1338 (jurisdiction
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`over copyright actions).” (ECF No. 1 at 2.)
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`A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
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`tests the sufficiency of the allegations in the Complaint. Navarro v. Block, 250 F.3d 729,
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`732 (9th Cir. 2001). To allege a copyright infringement claim, Plaintiff must (1) “show
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`ownership of the allegedly infringed material” and (2) “demonstrate that the alleged
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`infringers violate at least one exclusive right granted to copyright holders under 17
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`U.S.C. § 106.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).
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`Plaintiff alleges it owns over forty copyrighted works that are the subject of this suit and
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`claims that the works “are registered with the United States Copyright Office.” (ECF No.
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`1 at 7.) Plaintiff also alleges that Defendant “used the BitTorrent file network to illegally
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`download and distribute Plaintiff’s copyrighted motion pictures.” (Id. at 5.) With these
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`allegations, Plaintiff sufficiently sets forth facts demonstrating the required ownership
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`and infringement. Assuming these allegations are true, they state a claim on which
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`relief can be granted. See A&M Records, Inc., 239 F.3d at 1013-14 (finding plaintiffs
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`sufficiently demonstrated ownership and infringement by showing Napster allowed its
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`users to download copyrighted music, up to 70% of which was owned or administered
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`by the plaintiffs); see also Malibu Media, LLC v. Doe, No. 16CV1916-GPC(JMA), 2016 WL
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`6216183, at *2 (S.D. Cal. Oct. 25, 2016) (holding plaintiff has alleged a prima facie case
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`of copyright infringement against defendant by alleging that plaintiff owns 12
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`copyrighted movies at issue and that defendant infringed plaintiff’s copyrights by
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`copying and distributing plaintiff’s movies through the BitTorrent network without
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`plaintiff’s permission). Therefore, Plaintiff has sufficiently alleged a prima facie claim of
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`copyright infringement that will likely withstand a motion to dismiss based on subject
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`matter jurisdiction or failure to state claim.
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`In order to prevail on any claim, a case must also withstand a motion to dismiss
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`for lack of personal jurisdiction over a defendant. See Fed. R. Civ. P. 12(b)(2). To
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`withstand a motion to dismiss for lack of personal jurisdiction, Plaintiff must make a
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`“prima facie showing of jurisdictional facts.” Ballard v. Savage, 65 F.3d 1495, 1498 (9th
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`Cir. 1995). Plaintiff maintains that it used geolocation technology to determine that
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`Defendant’s IP address correlates to a physical address in San Diego, CA which falls
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`within the jurisdiction of the Southern District of California. (ECF No. 1 at 3.) Therefore,
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`Plaintiff has accordingly alleged jurisdictional facts that are likely to withstand a motion
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`to dismiss for lack of personal jurisdiction.
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`Based on the foregoing, the Court does not find any reason that Plaintiff’s claims
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`would be dismissed.
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`D. Whether Requested Discovery Will Lead to Identifying Information
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`Finally, Plaintiff is required to demonstrate that “there is a reasonable likelihood
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`that the discovery process will lead to identifying information about defendant that
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`would make service of process possible.” Columbia Ins. Co., 185 F.R.D. at 580. As
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`discussed above, Plaintiff’s forensic investigation uncovered the unique IP address
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`70.95.33.145. (ECF No. 3-2 at 21.) Further, Plaintiff claims to have utilized the American
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`Registry for Internet Numbers to determine that the ISP Spectrum owned Defendant’s
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`IP address at the time of the infringement. (Id. at 27.) Spectrum is the only entity that
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`may correlate Defendant’s IP address to the IP address owner’s true identity. (Id. at 26.)
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`Therefore, if Spectrum provides Plaintiff with Defendant’s name and address, Plaintiff
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`will likely lead to information making it possible to effectuate service on Defendant.
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`IV. CONCLUSION
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`For the foregoing reasons, the Court GRANTS the Ex Parte Application for Leave
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`to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 3] as follows:
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`1.
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`Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure
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`45 on Spectrum, seeking only the name and address of the subscriber assigned to the IP
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`address 70.95.33.145. Plaintiff may not subpoena additional information about the
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`subscriber;
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`2.
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`Plaintiff may only use the disclosed information to protect its copyrights in
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`the instant litigation;
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`3. Within fourteen (14) calendar days after service of the subpoena, Spectrum
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`20cv948-WQH (MSB)
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`Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.88 Page 10 of 10
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`shall notify the subscriber assigned the IP address 70.95.33.145 that his, her, or its
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`identity has been subpoenaed by Plaintiff;
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`4.
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`The subscriber whose identity has be subpoenaed shall have thirty (30)
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`calendar days from the date of the notice to challenge the disclosure of his, her, or its
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`name and address by filing an appropriate pleading with this Court contesting the
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`subpoena;
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`5.
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`If Spectrum wishes to move to quash the subpoena, it shall do so before
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`the return date of the subpoena. The return date of the subpoena must allow for at
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`least forty-five (45) days from service to production. If a motion to quash or other
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`customer challenge is brought, Spectrum shall preserve the information sought by
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`Plaintiff in the subpoena pending resolution of the motion or challenge;
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`6.
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`Plaintiff shall serve a copy of this Order with any subpoena obtained and
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`served to Spectrum pursuant to this Order;
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`7.
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`Spectrum must provide a copy of this Order along with the required notice
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`to the subscriber whose identity is sought pursuant to this Order.
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`8.
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`No other discovery is authorized at this time.
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`IT IS SO ORDERED.
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`Dated: July 24, 2020
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`20cv948-WQH (MSB)
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