1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 20cv67-LAB-LL
12 Plaintiff, ORDER GRANTING 13 v. EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD 14 JOHN DOE subscriber assigned IP PARTY SUBPOENA PRIOR TO A address 174.65.135.19, 15 RULE 26(f) CONFERENCE Defendant. 16 [ECF No. 4] 17 18 Currently before the Court is Plaintiff’s ex parte application for leave to serve a third- 19 party subpoena prior to a Rule 26(f) conference.1 ECF No. 4. Because Defendant has not 20 been identified, no opposition or reply briefs have been filed. Having reviewed Plaintiff’s 21 motion and all supporting documents, the Court GRANTS the motion for the reasons set 22 forth below. 23 I. BACKGROUND 24 Plaintiff alleges that it “is the owner of original, award winning motion pictures 25 featured on its brand’s subscription-based adult websites.” ECF No. 4-1 at 6. On January 26 27 28 1 1 8, 2020, Plaintiff filed a complaint against John Doe subscriber assigned IP address 2 174.65.135.19 alleging copyright infringement. ECF No. 1 (“Compl.”). Plaintiff alleges 3 that Defendant has illegally infringed by downloading and distributing fifty-three of its 4 copyrighted movies over the BitTorrent file distribution network for an extended period of 5 time. Id. at 2, 4. Plaintiff describes the BitTorrent network as a “system designed to quickly 6 distribute large files over the Internet.” Id. at 4. Plaintiff further alleges that Defendant, 7 who “attempted to hide this theft by infringing Plaintiff’s content anonymously,” can be 8 identified by his or her Internet Service Provider (“ISP”), Cox Communications, through 9 his or her IP address 174.54.135.19. Id. at 2. 10 On January 28, 2020, Plaintiff filed the instant ex parte application seeking an order 11 from the Court allowing it to serve a subpoena on Defendant’s ISP seeking Defendant’s 12 true name and address pursuant to Rule 45 so that Plaintiff may serve Defendant and 13 prosecute the claims in its complaint. ECF No. 4-1 at 7. 14 II. LEGAL STANDARD 15 A. The Cable Privacy Act 16 The Cable Privacy Act generally prohibits cable operators from disclosing 17 personally identifiable information regarding subscribers without the prior written or 18 electronic consent of the subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator may 19 disclose such information if the disclosure is made pursuant to a court order and the cable 20 operator provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable 21 operator is defined as “any person or group of persons (A) who provides cable service over 22 a cable system and directly or through one or more affiliates owns a significant interest in 23 such cable system, or (B) who otherwise controls or is responsible for, through any 24 arrangement, the management and operation of such a cable system.” 47 U.S.C. § 522(5). 25 B. Early Discovery 26 A party may not seek discovery from any source before the Rule 26(f) conference 27 unless that party first obtains a stipulation or court order permitting early discovery. 28 Fed. R. Civ. P. 26(d)(1). Courts in the Ninth Circuit apply the “good cause” standard in 1 deciding whether to permit early discovery. Semitool, Inc. v. Tokyo Electron America, 2 Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (adopting the conventional standard of “good 3 cause” in evaluating a request for expedited discovery). Good cause exists “where the need 4 for expedited discovery, in consideration of the administration of justice, outweighs the 5 prejudice to the responding party.” Id. Good cause for expedited discovery has been found 6 in cases involving claims of infringement and unfair competition. Id. In infringement cases, 7 expedited discovery is frequently limited to allowing plaintiffs to identify Doe defendants. 8 See Cell Firm Holdings, LLC v. Doe-72.220.126.76, No. 16CV2234-BEN (BLM), 2016 9 WL 4793161, at *3 (S.D. Cal. Sept. 14, 2016) (granting motion for expedited discovery in 10 infringement case to obtain only the true name and address of the Doe defendant); Quad 11 Int'l, Inc. v. Does 1-6, No. 2:12-CV-2631 LKK KJN, 2013 WL 142865, at *4 (E.D. Cal. 12 Jan. 11, 2013) (granting motion for expedited discovery in infringement case to obtain Doe 13 defendant’s name and contact information); UMG Recordings, Inc. v. Doe, No. C-08- 14 03999 RMW, 2008 WL 4104207, at *3 (N.D. Cal. Sept. 4, 2008) (granting leave to take 15 expedited discovery in infringement case for documents that would reveal the identity and 16 contact information for each Doe defendant). 17 District courts in the Ninth Circuit apply a three-factor test for determining whether 18 good cause exists to allow for expedited discovery to identify certain defendants. Columbia 19 Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999). First, the plaintiff 20 should “identify the missing party with sufficient specificity such that the Court can 21 determine that the defendant is a real person or entity who could be sued in federal court.” 22 Id. at 578. Second, the plaintiff must describe “all previous steps taken to locate the elusive 23 defendant” to ensure that plaintiff has made a good faith effort to identify the defendant. 24 Id. at 579. Third, plaintiff should establish that its lawsuit could withstand a motion to 25 dismiss. Id. 26 / / / 27 / / / 28 / / / 1 III. DISCUSSION 2 A. Identification of Missing Party with Sufficient Specificity 3 For the Court to grant Plaintiff’s motion, Plaintiff must first identify the Doe 4 defendant with sufficient specificity to enable the Court to determine that the Doe 5 defendant is a real person subject to the Court’s jurisdiction. Id. at 578. “Some district 6 courts in the Ninth Circuit have determined that a plaintiff identifies Doe defendants with 7 sufficient specificity by providing the unique IP addresses assigned to an individual 8 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 9 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC v. 10 Collective of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C 11 D63C23C91, No. 12CV00186 MMA (RBB), 2012 WL 12884688, at *4 (S.D. Cal. May 8, 12 2012); see e.g., OpenMind Sols., Inc. v. Does 1-39, No. C 11-3311 MEJ, 2011 WL 13 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (finding plaintiff met its burden to identify the Doe 14 defendants with sufficient specificity by identifying the unique IP addresses of individuals 15 engaged in BitTorrent protocol and using geolocation technology to trace the IP addresses 16 to a point of origin within the state of California); Pink Lotus Entm't, LLC v. Does 1-46, 17 No. C-11-02263 HRL, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (same). Others 18 have found that merely identifying the IP addresses assigned to the defendants on the day 19 of the purported infringement is sufficient to satisfy the first factor.” 808 Holdings, LLC, 20 2012 WL 12884688, at *4; see e.g., First Time Videos, LLC v. Does, No. C 11-01675 LB, 21 2011 WL 1431619, at *2 (N.D. Cal. Apr. 14, 2011) (“First, First Time Videos has identified 22 the Doe defendants with sufficient specificity by submitting a chart listing each of the 23 defendants by the IP address assigned to them on the day it alleges the particular defendant 24 engaged in the infringing conduct.”). This Court finds the first standard persuasive.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 20cv67-LAB-LL
12 Plaintiff, ORDER GRANTING 13 v. EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD 14 JOHN DOE subscriber assigned IP PARTY SUBPOENA PRIOR TO A address 174.65.135.19, 15 RULE 26(f) CONFERENCE Defendant. 16 [ECF No. 4] 17 18 Currently before the Court is Plaintiff’s ex parte application for leave to serve a third- 19 party subpoena prior to a Rule 26(f) conference.1 ECF No. 4. Because Defendant has not 20 been identified, no opposition or reply briefs have been filed. Having reviewed Plaintiff’s 21 motion and all supporting documents, the Court GRANTS the motion for the reasons set 22 forth below. 23 I. BACKGROUND 24 Plaintiff alleges that it “is the owner of original, award winning motion pictures 25 featured on its brand’s subscription-based adult websites.” ECF No. 4-1 at 6. On January 26 27 28 1 1 8, 2020, Plaintiff filed a complaint against John Doe subscriber assigned IP address 2 174.65.135.19 alleging copyright infringement. ECF No. 1 (“Compl.”). Plaintiff alleges 3 that Defendant has illegally infringed by downloading and distributing fifty-three of its 4 copyrighted movies over the BitTorrent file distribution network for an extended period of 5 time. Id. at 2, 4. Plaintiff describes the BitTorrent network as a “system designed to quickly 6 distribute large files over the Internet.” Id. at 4. Plaintiff further alleges that Defendant, 7 who “attempted to hide this theft by infringing Plaintiff’s content anonymously,” can be 8 identified by his or her Internet Service Provider (“ISP”), Cox Communications, through 9 his or her IP address 174.54.135.19. Id. at 2. 10 On January 28, 2020, Plaintiff filed the instant ex parte application seeking an order 11 from the Court allowing it to serve a subpoena on Defendant’s ISP seeking Defendant’s 12 true name and address pursuant to Rule 45 so that Plaintiff may serve Defendant and 13 prosecute the claims in its complaint. ECF No. 4-1 at 7. 14 II. LEGAL STANDARD 15 A. The Cable Privacy Act 16 The Cable Privacy Act generally prohibits cable operators from disclosing 17 personally identifiable information regarding subscribers without the prior written or 18 electronic consent of the subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator may 19 disclose such information if the disclosure is made pursuant to a court order and the cable 20 operator provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable 21 operator is defined as “any person or group of persons (A) who provides cable service over 22 a cable system and directly or through one or more affiliates owns a significant interest in 23 such cable system, or (B) who otherwise controls or is responsible for, through any 24 arrangement, the management and operation of such a cable system.” 47 U.S.C. § 522(5). 25 B. Early Discovery 26 A party may not seek discovery from any source before the Rule 26(f) conference 27 unless that party first obtains a stipulation or court order permitting early discovery. 28 Fed. R. Civ. P. 26(d)(1). Courts in the Ninth Circuit apply the “good cause” standard in 1 deciding whether to permit early discovery. Semitool, Inc. v. Tokyo Electron America, 2 Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (adopting the conventional standard of “good 3 cause” in evaluating a request for expedited discovery). Good cause exists “where the need 4 for expedited discovery, in consideration of the administration of justice, outweighs the 5 prejudice to the responding party.” Id. Good cause for expedited discovery has been found 6 in cases involving claims of infringement and unfair competition. Id. In infringement cases, 7 expedited discovery is frequently limited to allowing plaintiffs to identify Doe defendants. 8 See Cell Firm Holdings, LLC v. Doe-72.220.126.76, No. 16CV2234-BEN (BLM), 2016 9 WL 4793161, at *3 (S.D. Cal. Sept. 14, 2016) (granting motion for expedited discovery in 10 infringement case to obtain only the true name and address of the Doe defendant); Quad 11 Int'l, Inc. v. Does 1-6, No. 2:12-CV-2631 LKK KJN, 2013 WL 142865, at *4 (E.D. Cal. 12 Jan. 11, 2013) (granting motion for expedited discovery in infringement case to obtain Doe 13 defendant’s name and contact information); UMG Recordings, Inc. v. Doe, No. C-08- 14 03999 RMW, 2008 WL 4104207, at *3 (N.D. Cal. Sept. 4, 2008) (granting leave to take 15 expedited discovery in infringement case for documents that would reveal the identity and 16 contact information for each Doe defendant). 17 District courts in the Ninth Circuit apply a three-factor test for determining whether 18 good cause exists to allow for expedited discovery to identify certain defendants. Columbia 19 Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999). First, the plaintiff 20 should “identify the missing party with sufficient specificity such that the Court can 21 determine that the defendant is a real person or entity who could be sued in federal court.” 22 Id. at 578. Second, the plaintiff must describe “all previous steps taken to locate the elusive 23 defendant” to ensure that plaintiff has made a good faith effort to identify the defendant. 24 Id. at 579. Third, plaintiff should establish that its lawsuit could withstand a motion to 25 dismiss. Id. 26 / / / 27 / / / 28 / / / 1 III. DISCUSSION 2 A. Identification of Missing Party with Sufficient Specificity 3 For the Court to grant Plaintiff’s motion, Plaintiff must first identify the Doe 4 defendant with sufficient specificity to enable the Court to determine that the Doe 5 defendant is a real person subject to the Court’s jurisdiction. Id. at 578. “Some district 6 courts in the Ninth Circuit have determined that a plaintiff identifies Doe defendants with 7 sufficient specificity by providing the unique IP addresses assigned to an individual 8 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 9 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC v. 10 Collective of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C 11 D63C23C91, No. 12CV00186 MMA (RBB), 2012 WL 12884688, at *4 (S.D. Cal. May 8, 12 2012); see e.g., OpenMind Sols., Inc. v. Does 1-39, No. C 11-3311 MEJ, 2011 WL 13 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (finding plaintiff met its burden to identify the Doe 14 defendants with sufficient specificity by identifying the unique IP addresses of individuals 15 engaged in BitTorrent protocol and using geolocation technology to trace the IP addresses 16 to a point of origin within the state of California); Pink Lotus Entm't, LLC v. Does 1-46, 17 No. C-11-02263 HRL, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (same). Others 18 have found that merely identifying the IP addresses assigned to the defendants on the day 19 of the purported infringement is sufficient to satisfy the first factor.” 808 Holdings, LLC, 20 2012 WL 12884688, at *4; see e.g., First Time Videos, LLC v. Does, No. C 11-01675 LB, 21 2011 WL 1431619, at *2 (N.D. Cal. Apr. 14, 2011) (“First, First Time Videos has identified 22 the Doe defendants with sufficient specificity by submitting a chart listing each of the 23 defendants by the IP address assigned to them on the day it alleges the particular defendant 24 engaged in the infringing conduct.”). This Court finds the first standard persuasive. 25 Here, Plaintiff has provided a declaration from David Williamson, an information 26 and systems management consultant, currently employed as Plaintiff’s Chief Technology 27 Officer. ECF No. 4-2, Declaration of David Williamson (“Williamson Decl.”), ¶¶ 11–12. 28 Mr. Williamson states that he “oversaw the design, development, and overall creation of 1 the infringement detection system called VXN Scan,” which Plaintiff owns and uses to 2 “identify the IP addresses used by individuals infringing Plaintiff’s movies via the 3 BitTorrent protocol.” Id. ¶ 40. Mr. Williamson explains the VXN Scan system in detail, 4 which involves, in part, a proprietary BitTorrent client that emulates the behavior of a 5 standard BitTorrent client by repeatedly downloading data pieces from peers within a 6 BitTorrent network that are distributing Plaintiff’s movies. Id. ¶¶ 52–55. Mr. Williamson 7 states that other components of VXN Scan retrieve and store identical copies of every 8 network packet that is sent and received by the proprietary BitTorrent client, which 9 includes the IP address, date and time of the network transaction, the port number and 10 BitTorrent client used to accomplish the network transaction. Id. ¶¶ 57–66. It also includes 11 the “Info Hash” associated with the infringing computer file, which reflects the metadata 12 of the underlying .torrent file being shared without authorization. Id. ¶ 62. Mr. Williamson 13 further explains that VXN Scan also extracts infringing transaction data from each packet 14 capture (“PCAP”)2, connects with Maxmind geolocation database to determine the ISP that 15 assigned a particular IP address as well as the city and state the IP address traces to, and 16 summarizes the extracted infringing transaction data in a tabular format. Id. ¶¶ 74–79. 17 Plaintiff also provides the declaration of Patrick Paige, a computer forensics expert 18 retained by Plaintiff to analyze and retain forensic evidence captured by its VXN Scan 19 system. ECF No. 4-2, Declaration of Patrick Paige (“Paige Decl.”), ¶¶ 3–9, 12. Mr. Paige 20 states that he reviewed a PCAP from Plaintiff containing information related to a 21 transaction that occurred on November 18, 2019 involving IP address 174.65.135.19. Id. ¶ 22 16. Mr. Paige attests that in reviewing the PCAP, he was able to confirm that the PCAP is 23 evidence of a recorded transaction with 174.65.135.19 on November 18, 2019 and it 24 correlates to a movie owned by Plaintiff. Id. ¶¶ 18–19. 25 26
27 2 “A PCAP is a computer file containing captured or recorded data transmitted between 28 1 Next, Plaintiff provided a declaration from Emilie Kennedy, Plaintiff’s in-house 2 general counsel, in which Ms. Kennedy states that Plaintiff inputted IP address 3 174.65.135.19 into Maxmind’s Geolocation Database prior to filing its complaint and prior 4 to filing the instant motion, and both times, IP address 174.65.135.19 traced to a location 5 in San Diego, California.3 ECF No. 4-2, Declaration of Emilie Kennedy (“Kennedy 6 Decl.”), ¶¶ 6–7. 7 Finally, Plaintiff provided a declaration from Susan B. Stalzer, an employee of 8 Plaintiff who reviews the content of its motion pictures and who was tasked with reviewing 9 contents of the infringing files identified in Exhibit A to the complaint and comparing them 10 to Plaintiff’s original works to confirm they were identical, strikingly similar or 11 substantially similar. ECF No. 4-2, Declaration of Susan B. Stalzer, (“Stalzer Decl.”), ¶¶ 12 3, 7–10. Ms. Stalzer also states that she used “American Registry for Internet Numbers 13 (‘ARIN’) to confirm that the ISP Cox Communication did own Defendant’s IP address at 14 the time of the infringements, and hence has the relevant information to identify Doe 15 Defendant.” Id. ¶ 11. The dates of the alleged infringing activity in Exhibit A range from 16 November 22, 2017 through November 17, 2019. ECF No 1-2. 17 Because Plaintiff has provided the Court with the unique IP address and the dates 18 and times of connection plus the methodology for obtaining them, the name of the ISP 19 and/or cable operator that provided internet access for the user of the identified IP address, 20 21 22 3 Ms. Kennedy also states that after Plaintiff received infringement data from VXN Scan 23 identifying IP address 174.65.135.19 as infringing its works, the IP address was automatically inputted into Maxmind’s Geolocation Database on November 16, 2017, but 24 this is nonsensical as the Court notes that that date is before the earliest of the alleged acts 25 of infringement on November 22, 2017. Kennedy Decl. ¶¶ 4–5; ECF No. 1-2 at 2. However, the Court also notes that Mr. Williamson stated that the VXN Scan system connects with 26 the Maxmind database automatically to add the ISP that assigned the IP address, as well as 27 the city and state it traces to, to a tabular output of infringing transaction data. Williamson Decl. ¶¶ 74–79. The VXN Scan system thus appears to trace the IP address to a city and 28 1 and used Maxmind geolocation technology to trace the IP address to this District at or close 2 to the time of the infringement and prior to filing the complaint and this motion, the Court 3 finds that Plaintiff has made a sufficient showing that Doe Defendant with IP address 4 174.65.135.19 likely resolves to a real person or entity with a physical address in this 5 District. See Criminal Prods., Inc. v. Doe-72.192.163.220, No. 16-CV-2589 WQH (JLB), 6 2016 WL 6822186, at *2–3 (S.D. Cal. Nov. 18, 2016); 808 Holdings, LLC, 2012 WL 7 12884688, at *4. 8 B. Previous Attempts to Locate Defendant 9 Second, Plaintiff must describe all prior attempts it has made to identify the Doe 10 defendant in a good faith effort to locate and serve them. See Columbia Ins. Co., 185 F.R.D. 11 at 579. Plaintiff states that it “diligently attempted to correlate Defendant’s IP address to 12 Defendant by searching for Defendant’s IP address” on various internet search tools; by 13 reviewing sources of authority such as legislative reports and informational technology 14 guides for other means of identification; and by consulting with computer investigators and 15 cyber security experts. ECF No. 4-1 at 12–13. Plaintiff states that despite these efforts, it 16 is unable to obtain the identity of the alleged infringer because although publicly available 17 data enables Plaintiff to identify the ISP, city, and state associated with an IP address, it 18 does not allow Plaintiff to obtain the name of the subscriber. Id. at 13. Plaintiff further 19 states that Defendant’s IP address is “assigned to Defendant by his or her [ISP], which is 20 the only party with the information necessary to identify Defendant by correlating the IP 21 address with John Doe’s identify.” Id. at 6; Paige Decl. ¶ 22. Based on the above, the Court 22 finds that Plaintiff has made a good faith effort to identify and locate the Doe defendant. 23 C. Whether Plaintiff Can Withstand a Motion to Dismiss 24 “[P]laintiff must make some showing that an act giving rise to civil liability actually 25 occurred and that the [pre-service] discovery is aimed at revealing specific identifying 26 features of the person or entity who committed that act.” Columbia Ins. Co. v. 27 seescandy.com, 185 F.R.D. 573, 580 (N.D. Cal. 1999). “[A] plaintiff who claims copyright 28 infringement must show: (1) ownership of a valid copyright; and (2) that the defendant 1 violated the copyright owner’s exclusive rights under the Copyright Act.” Ellison v. 2 Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citations omitted). “To prove a claim of 3 direct copyright infringement, a plaintiff must show that he owns the copyright and that 4 the defendant himself violated one or more of the plaintiff’s exclusive rights under the 5 Copyright Act.” Id. (citation omitted). 6 Plaintiff states that it is the exclusive rights holder of the copyrighted works at issue 7 and that they are registered with the United States Copyright Office. See ECF No. 4-1 at 8 15; Compl. at 6; ECF No. 1-2 (Exhibit A); Williamson Decl. ¶ 13; Stalzer Decl. ¶¶ 7–10. 9 Plaintiff alleges that between November 22, 2017 and November 17, 2019, Defendant 10 infringed Plaintiff’s copyrighted works by downloading, copying, and distributing 11 Plaintiff’s works using the BitTorrent file distribution network. See ECF No. 4-1 at 15; 12 Compl. at 6; ECF No. 1-2. Plaintiff further alleges that it did not authorize, permit, or 13 consent to Defendant’s copying or distributing its works. ECF No. 4-1 at 14–15; Compl. 14 at 7. Accordingly, Plaintiff has alleged the prima facie elements of direct copyright 15 infringement and could withstand a motion to dismiss. See Ellison, 357 F.3d at 1076; 16 Columbia Ins. Co., 185 F.R.D. at 579–80. 17 IV. CONCLUSION 18 Once Plaintiff learns the subscriber's identity, it cannot rely on a bare allegation that 19 he or she is the registered subscriber of an IP address associated with infringing activity to 20 state a plausible claim for direct or contributory copyright infringement. Cobbler Nevada, 21 LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018); Strike 3 Holdings, LLC v. Doe 22 70.95.181.51, No. 19-CV-73-WQH-WVG, 2019 WL 777416, at *3 (S.D. Cal. Feb. 21, 23 2019). However, at this point in the litigation, Plaintiff has made an adequate showing of 24 the need to subpoena Defendant’s ISP. See Glacier Films (USA), Inc. v. Turchin, 896 F.3d 25 1033, 1036 (9th Cir. 2018) (observing that the district court’s case management order 26 permitting “limited discovery from an Internet Service Provider to establish a potential 27 infringer’s identity” was part of a “practical solution” to manage a large number of peer- 28 to-peer copyright infringement cases); Strike 3 Holdings, LLC v. Doe, No. 1 218CV02637MCECKD, 2019 WL 935390, at *4–5 (E.D. Cal. Feb. 26, 2019); Strike 3 2 Holdings, LLC v. Doe 70.95.181.51, 2019 WL 777416 at *3. Thus, finding good cause, 3 the Court GRANTS Plaintiff’s motion for expedited discovery and ORDERS the 4 following: 5 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 6 45 on Cox Communication that seeks only the true name and address of the subscriber 7 assigned IP address 174.65.135.19 during the time period of the allegedly infringing 8 conduct described in Plaintiff’s complaint. Plaintiff shall not subpoena additional 9 information. 10 2. Plaintiff may only use the disclosed information for the purpose of protecting 11 its rights in pursuing this litigation. 12 3. Within fourteen calendar days after service of the subpoena, Cox 13 Communication shall notify the subscriber that his or her identifying information has been 14 subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed shall have 15 thirty calendar days from the date of such notice to challenge the disclosure by filing an 16 appropriate pleading with this Court contesting the subpoena. 17 4. If Cox Communication wishes to move to quash the subpoena, it shall do so 18 before the return date of the subpoena. The return date of the subpoena must allow for at 19 least forty-five days from service to production. If a motion to quash or other customer 20 challenge is brought, Cox Communication shall preserve the information sought by 21 Plaintiff in the subpoena pending resolution of such motion or challenge. 22 5. Plaintiff shall serve a copy of this Order with any subpoena obtained and 23 served pursuant to this Order to Cox Communication. Cox Communication, in turn, must 24 provide a copy of this Order along with the required notice to the subscriber whose identity 25 is sought pursuant to this Order. 26 6. Once Plaintiff learns the identity of the subscriber(s), Plaintiff shall provide a 27 copy of this Order to that person or those persons when Plaintiff first makes contact with 28 the subscriber regarding this case. At that same time, Plaintiff shall also provide the 1 ||subscriber(s) a copy of the Ninth Circuit's opinion in Cobbler Nevada, LLC v. Gonzales, 2 ||901 F.3d 1142 (9th Cir. 2018). Once both have been provided to the subscriber(s), counsel 3 || for Plaintiff shall immediately file a declaration that confirms these have been provided to 4 || the subscriber. 5 7. Plaintiff and Cox Communication shall henceforth refer to the subscriber as 6 ||‘“John/Jane Doe” and shall redact and omit from all future filings all information that 7 |\identifies the subscriber personally. Such identifying information includes the subscriber's 8 |{name and address, unless and until the subscriber becomes a defendant in the above- 9 || captioned case. Plaintiff and Cox Communication shall refer to the subscriber generically 10 }/in any filings and attach—under seal—a separate exhibit that includes the subscriber's 11 |}identifying information.’ 12 8. The subscriber may initially proceed anonymously as “John/Jane Doe” until 13 ||such time that there is sufficient proof before the Court that the subscriber is connected 14 || with the alleged infringement. 15 9. Plaintiff may not engage in any settlement discussions with the subscriber 16 || unless and until the subscriber has been served with the Complaint and the documents set 17 || forth in paragraph (6) above. 18 IT IS SO ORDERED. 19 Dated: March 9, 2020 KO 20 DEF 1 Honorable Linda Lopez 39 United States Magistrate Judge 23 24 25
27 ||* Before filing any document under seal, the parties shall follow and abide by applicable 0g law, including Civil Local Rule 79.2, Section 2.j. of the Electronic Case Filing Administrative Policies and Procedures, and chambers rules.