Strike 3 Holdings, LLC v. Doe

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 STRIKE 3 HOLDINGS, LLC, Case No.: 22-cv-0292-LL-AGS

5 Plaintiff, ORDER GRANTING MOTION FOR 6 v. EARLY DISCOVERY (ECF 4) 7 John DOE subscriber assigned IP address 70.95.17.135, 8 Defendant. 9 10 Plaintiff seeks leave to serve a third-party subpoena before a Rule 26(f) Conference 11 in order to identify the true name and address of the defendant in this action. That motion 12 (ECF 4) is GRANTED. See Malibu Media, LLC v. Doe, No. 16cv444 GPC (BGS), 13 2016 WL 1618227, at *3-4 (S.D. Cal. Apr. 22, 2016); Malibu Media, LLC v. John Does 14 1 through 16, No. 12-cv-1847-AJB (DHB), 2012 WL 3809128, at *3-5 (S.D. Cal. 15 Sept. 4, 2012). In order to justify issuance of an early subpoena to identify a defendant, 16 plaintiff must show “good cause.” See Malibu Media, 2016 WL 1618227, at *2. 17 District courts in the Ninth Circuit apply the following test to determine whether early discovery may be permitted to locate defendants: first, the court 18 may require the plaintiff to sufficiently identify the unknown party so it is 19 clear there exists a real person or entity; second, the court may ask the plaintiff to show it has made a good faith effort to identify and serve the defendant; 20 third, the court may require the plaintiff to prove its claim could withstand a 21 motion to dismiss; finally, the court may also ask the plaintiff to show that the requested discovery will lead to identifying information about the defendant 22 that would make service of process possible. 23 Id. 24 Plaintiff has shown, by way of affidavits attached to its motion, that defendant is real 25 and can be sued. See id. at 3. Plaintiff has—through the identification of the unique IP 26 address, the dates and times of the alleged connections, and the name of the Internet Service 27 Provider (ISP)—identified defendant with the requisite specificity to justify an early 28 1 ||subpoena. See id. Plaintiff identified the defendant’s unique IP address and adequately 2 established that it cannot identify defendant further without the requested facts from the 3 /d. Because of the Cable Privacy Act, the ISP cannot yield this information without a 4 ||subpoena from this Court. See 47 U.S.C. § 551(c). And plaintiff alleges that it owns the 5 || copyrights at issue and specifically lists the registration numbers of the allegedly infringed 6 || works. Thus, the complaint, at least on its face, states a claim. Finally, plaintiff has shown 7 ||that the requested discovery will lead to identifying information, as it has identified a 8 ||}unique IP address that an ISP can tie, at least potentially, to a specific individual. See 9 || Malibu Media, 2016 WL 1618227, at *4. 10 Accordingly, plaintiff has established good cause and may serve a subpoena upon 11 ISP seeking only the true name and address of the individual identified. Plaintiff may 12 seek any further information without leave of Court, or propound any other discovery, 13 may not use the information gathered through the subpoena for any purpose except to 14 identify and serve the proper defendant in the instant litigation. If the ISP seeks to quash 15 ||the subpoena, it must do so before the subpoena’s return date, which must be at least 16 days from service.' In the event the subpoena is challenged, the ISP must preserve the 17 || data sought until that dispute is adjudicated. A copy of this order must be attached to and 18 accompany the subpoena. 19 || Dated: March 28, 2022 20 — | 1 Hon. Andrew G. Schopler United States Magistrate Judge 22 23 24 25 2oi}o020tti<“i‘< OO! 27 ' The Court notes that, should the ISP qualify as a “cable operator” under 47 U.S.C. 28 § 522(5), it Is required to provide a copy of this order to any individual whose personal identifying information is disclosed as a result of this order.