Strike 3 Holdings, LLC v. Doe, No. 3:2023cv00702 - Document 5 (S.D. Cal. 2023)
Court Description: ORDER granting 4 ex parte application for leave to serve a Third-Party Subpoena prior to a Rule 26 (f) Conference. Signed by Magistrate Judge Allison H. Goddard on 5/08/2023. (jpp)
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Strike 3 Holdings, LLC v. Doe Doc. 5 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.: 3:23-cv-00702-RBM-AHG Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 68.7.244.25, 15 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. 16 [ECF No. 4] 17 18 19 Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Plaintiff”) Ex Parte 20 Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. 21 ECF No. 4. No defendant has been named or served, and so no opposition or reply briefs 22 have been filed. For the reasons discussed below, the Court GRANTS Plaintiff’s ex parte 23 application. 24 I. BACKGROUND 25 On April 18, 2023, Plaintiff filed a Complaint against Defendant “John Doe,” who 26 is a subscriber of the Internet Service Provider (“ISP”) Cox Communications, with 27 assigned Internet Protocol (“IP”) address 68.7.244.25. ECF No. 1 ¶ 5. Plaintiff Strike 3 28 Holdings, LLC, is the owner of numerous adult motion pictures, which Plaintiff distributes 1 3:23-cv-00702-RBM-AHG Dockets.Justia.com 1 through adult websites and DVDs. Id. ¶¶ 2–3. Plaintiff asserts that Defendant is committing 2 “rampant and wholesale copyright infringement” by downloading, recording, and 3 distributing copies of Plaintiff’s copyrighted motion pictures without authorization through 4 the use of the BitTorrent file distribution network. Id. at ¶¶ 4, 18–44. 5 In the instant motion, Plaintiff seeks leave to conduct early discovery prior to the 6 mandated Rule 26(f) conference to learn Defendant’s identity. ECF No. 4. Specifically, 7 Plaintiff seeks an order permitting it to serve a third-party subpoena under Federal Rule of 8 Civil Procedure 45 on Defendant’s ISP, Cox Communications (“Cox”), which would 9 require Cox to supply the name and address of Defendant John Doe to Plaintiff, so that 10 Plaintiff “may learn Defendant’s identity, further investigate Defendant’s role in the 11 infringement, and effectuate service.” ECF No. 4-1 at 7–8. Through service of the third- 12 party subpoena, Plaintiff seeks only “the true name and address of Defendant.” Id. at 8. 13 Additionally, Plaintiff represents to the Court that it will only use this information to 14 prosecute the claims made in its Complaint. Id. 15 II. 16 A party is generally not permitted to obtain discovery without a court order before 17 the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. 18 P. 26(d)(1). However, courts make exceptions to allow limited discovery after a complaint 19 is filed to permit the plaintiff to learn the identifying information necessary to serve the 20 defendant. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999); 21 see, e.g., UMG Recordings, Inc. v. Doe, No. C-08-3999-RMW, 2008 WL 4104207, at *2 22 (N.D. Cal. Aug. 29, 2008) (noting, in an infringement case, that “a plaintiff cannot have a 23 discovery planning conference with an anonymous defendant[,]” and limited expedited 24 discovery would thus “permit the [plaintiff] to identify John Doe and serve the defendant, 25 permitting this case to go forward.”). LEGAL STANDARD 26 Consistent with this generally recognized exception to Rule 26(f), the Ninth Circuit 27 has held that “‘where the identity of the alleged defendant[] [is] not [] known prior to the 28 filing of a complaint[,] the plaintiff should be given an opportunity through discovery to 2 3:23-cv-00702-RBM-AHG 1 identify the unknown defendants, unless it is clear that discovery would not uncover the 2 identities, or that the complaint would be dismissed on other grounds.’” Wakefield v. 3 Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 4 637, 642 (9th Cir. 1980)). 5 A party who requests early or expedited discovery must make a showing of good 6 cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 7 2002) (applying “the conventional standard of good cause in evaluating Plaintiff’s request 8 for expedited discovery”). Good cause is established through a balancing test “where the 9 need for expedited discovery, in consideration of the administration of justice, outweighs 10 the prejudice to the responding party.” Id. at 276. To determine whether “good cause” 11 exists to permit expedited discovery to identify John Doe defendants, district courts in the 12 Ninth Circuit consider whether the plaintiff (1) “identif[ies] the missing party with 13 sufficient specificity such that the Court can determine that the defendant is a real person 14 or entity who could be sued in federal court”; (2) “identif[ies] all previous steps taken to 15 locate the elusive defendant” to ensure that plaintiff has made a good faith effort to identify 16 the defendant; and (3) “establish[es] to the Court’s satisfaction that plaintiff’s suit against 17 defendant could withstand a motion to dismiss.” Columbia Ins., 185 F.R.D. at 578–80. 18 Additionally, the plaintiff should demonstrate the discovery will likely lead to identifying 19 information that will permit service of process. Id. at 580. These factors are considered to 20 ensure the expedited discovery procedure “will only be employed in cases where the 21 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 22 pre-service, and will prevent use of this method to harass or intimidate.” Id. 23 III. 24 Plaintiff contends that there is good cause for this Court to allow expedited 25 DISCUSSION discovery. ECF No. 4-1 at 11–18. For the reasons stated below, the Court agrees. 26 a. Identification of Missing Party with Sufficient Specificity 27 To satisfy the first prong, Plaintiff must identify Defendant with enough specificity 28 to enable the Court to determine that Defendant is a real person or entity who would be 3 3:23-cv-00702-RBM-AHG 1 subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. District courts 2 in this circuit have determined “a plaintiff identifies Doe defendants with sufficient 3 specificity by providing the unique IP addresses assigned to an individual defendant on the 4 day of the allegedly infringing conduct, and by using ‘geolocation technology’ to trace the 5 IP addresses to a physical point of origin.” 808 Holdings, LLC v. Collective of December 6 29, 2011 Sharing Hash, No. 12cv186 MMA-RBB, 2012 WL 12884688, at *4 (S.D. Cal. 7 May 4, 2012); see Openmind Solutions, Inc. v. Does 1-39, No. C-11-3311-MEJ, 2011 WL 8 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (concluding that plaintiff satisfied the first factor 9 by identifying the defendants’ IP addresses and by tracing the IP addresses to a point of 10 origin within the State of California); Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11- 11 02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (same). Other courts have 12 concluded that merely identifying the IP addresses on the day of the alleged infringement 13 satisfies this factor. 808 Holdings, 2012 WL 12884688, at *4 (collecting cases). 14 Here, Plaintiff has identified the Doe Defendant with sufficient specificity. First, in 15 support of the present motion, Plaintiff provided an 81-paragraph Declaration of David 16 Williamson, an independent contractor hired by Plaintiff as an Information Systems and 17 Management Consultant. ECF No. 4-2 at 2–15 (“Ex. A”). In that role, Mr. Williamson 18 testifies he “oversaw the design, development, and overall creation of the infringement 19 detection system called VXN Scan[,] which [Plaintiff] both owns and uses to identify the 20 IP addresses used by individuals infringing Plaintiff’s movies via the BitTorrent protocol.” 21 Ex. A, ¶ 40. Mr. Williamson’s Declaration explains the VXN Scan system in detail, which 22 involves, in part, the development of a proprietary BitTorrent client that emulates the 23 behavior of a standard BitTorrent client by repeatedly downloading data pieces from peers 24 within the BitTorrent network that are distributing Plaintiff’s movies. Id. ¶¶ 52–55. 25 Mr. Williamson testifies that another component of the VXN Scan system is the PCAP1 26 27 28 1 PCAP stands for “Packet Capture.” Ex. A at ¶ 58. 4 3:23-cv-00702-RBM-AHG 1 Recorder / Capture Card, which is able to record the IP addresses connecting to the 2 Proprietary Client and sending the infringed copies of Plaintiff’s movies to the Proprietary 3 Client through the BitTorrent network. Id. ¶¶ 57–59. Not only does a PCAP contain the IP 4 addresses used in the network transaction, it also records the port number and BitTorrent 5 client used to accomplish each transaction, and the “Info Hash” associated with the 6 infringing computer file, which reflects the metadata of the particular underlying .torrent 7 file being shared without authorization. Id. ¶¶ 61–62. VXN uses a PCAP Capture Card 8 called Link™ NT40A01 SmartNIC, which records PCAPs in real time, and is able to record 9 perfect copies of every network packet received by the Proprietary Client via a passive 10 network tap. Id. ¶¶ 63–65. Although this Order touches only on two of the components of 11 the VXN Scan system, Mr. Williamson’s 81-paragraph Declaration sets forth additional 12 in-depth details of all five components of the system, providing the Court a thorough 13 understanding of how the system reliably pinpoints the IP addresses used by individuals 14 infringing Plaintiff’s movies and verifies the infringement. 15 Second, Plaintiff also provided a declaration by Patrick Paige, a computer forensics 16 expert retained by Plaintiff to analyze and retain forensic evidence captured by the VXN 17 Scan system. ECF No. 4-2 at 17–22 (“Ex. B”). Mr. Paige explains that VXN Scan recorded 18 numerous BitTorrent computer transactions with IP address 68.7.244.25 in the form of 19 PCAPs, and that he reviewed the PCAP to confirm that it evidences a recorded transaction 20 with that IP address on March 20, 2023 at 20:27:08 UTC involving the IP address 21 uploading a piece or pieces of a file corresponding to the hash value that is unique to one 22 of Plaintiff’s movies. Ex. B, ¶¶ 13–26. 23 Third, Plaintiff provided a declaration by Susan Stalzer, one of Plaintiff’s employees 24 who verified that each digital media file obtained using the VXN Scan’s Torrent Collector 25 and Downloader components was a copy of one of Plaintiff’s copyrighted works, by 26 viewing the unauthorized motion pictures corresponding with the file hashes side-by-side 27 with Plaintiff’s original movies. ECF No. 4-2 at 7-11 (“Ex. C”); see also ECF No. 1-2 28 5 3:23-cv-00702-RBM-AHG 1 (Exhibit A to the Complaint, listing the hash values of the 28 torrent files received by the 2 Proprietary Client from the IP address 68.7.244.25). 3 Finally, Plaintiff explains that it used Maxmind, a geolocation technology, to trace 4 Defendant’s IP address to a geographic area within this Court’s personal jurisdiction. ECF 5 No. 4-1 at 12. To elaborate on this point, Plaintiff provides a declaration by Emilie 6 Kennedy, Plaintiff’s in-house General Counsel. ECF No. 4-2 at 28–30 (“Ex. D”). Ms. 7 Kennedy explains that after Plaintiff received infringement data from VXN Scan 8 identifying IP address 68.7.244.25 as infringing its works, the IP address was automatically 9 input into Maxmind’s Geolocation Database on November 14, 2022 at 14:37:57 UTC, 10 which traced the IP address location to San Diego, California, within this Court’s 11 jurisdiction. Ex. D, ¶¶ 4–5. Plaintiff has since repeated the trace through the Geolocation 12 Database twice more, prior to filing the Complaint and prior to filing the present Motion, 13 confirming the IP address continues to trace to San Diego and this District. Id. ¶¶ 6–7. The 14 Court is satisfied that these multiple geolocation traces over the course of five months 15 indicating that the Defendant is located in this District are reliably accurate. 16 Based on all of the information above, the Court concludes that Plaintiff has 17 provided a sufficient showing that it seeks to sue a real person subject to the Court’s 18 jurisdiction. Likewise, if Plaintiff obtains the identifying information from the ISP for the 19 subscriber assigned the IP address at issue, the information sought in the subpoena would 20 likely enable Plaintiff to serve Defendant. Therefore, the Court finds Plaintiff satisfied the 21 “sufficient specificity” threshold. 22 b. Previous Attempts to Locate Defendant 23 Next, Plaintiff is required to describe all steps taken to identify the Doe defendant in 24 a good-faith effort to locate and serve them. Plaintiff states that it attempted to locate 25 Defendant by searching for Defendant’s IP address using online search engines and other 26 web search tools. ECF No. 4-1 at 14. Plaintiff also reviewed numerous sources of authority 27 such as legislative reports, agency websites, and informational technology guides, 28 regarding whether it is possible to identify such a defendant by other means, and 6 3:23-cv-00702-RBM-AHG 1 extensively discussed this issue with its computer investigators and cyber security 2 consultants. Id. Despite these diligent efforts, Plaintiff was unable to identify any means of 3 obtaining the identities of an accused infringer such as Defendant other than through 4 subpoenaing the information from Defendant’s ISP. Id. In his Declaration, Mr. Paige 5 testified that based on his experience in similar cases, Defendant’s ISP, Cox 6 Communications, is the only entity that can correlate the IP address 68.7.244.25 to its 7 subscriber to pinpoint Defendant’s identity. Ex. B ¶ 28. Thus, the Court finds Plaintiff has 8 shown it has made a good-faith effort to identify and locate Defendant through other means 9 before resorting to filing the instant motion. 10 c. Whether Plaintiff Can Withstand a Motion to Dismiss 11 Lastly, Plaintiff must establish it could survive a motion to dismiss. See Fed. R. Civ. 12 P. 12(b); Columbia Ins., 185 F.R.D. at 579. To survive a motion to dismiss for failure to 13 state a claim upon which relief can be granted, “a complaint must contain sufficient factual 14 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 15 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 16 (2007)). To present a prima facie case of copyright infringement, Plaintiff must show: (1) 17 ownership of a valid copyright; and (2) that Defendant violated the copyright owner’s 18 exclusive rights under the Copyright Act. Range Road Music, Inc. v. East Coast Foods, 19 Inc., 668 F.3d 1148, 1153 (9th Cir. 2012). In addition, for direct infringement Plaintiff is 20 required to show causation by Defendant. Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 21 666 (9th Cir. 2017). 22 Here, Plaintiff’s Complaint clearly alleges that Plaintiff owns a valid copyright in 23 the works at issue, which are registered with the United States Copyright Office. See ECF 24 No. 1 ¶¶ 43, 46, 49.2 And again, Ms. Stalzer attests that she reviewed the files correlating 25 26 27 2 28 Exhibit A to the Complaint, which shows the hash values of the purportedly infringing movies downloaded from the IP address 68.7.244.25, also contains the United States 7 3:23-cv-00702-RBM-AHG 1 to the hashes identified in Exhibit A to the Complaint and confirmed that they are 2 “identical, strikingly similar or substantially similar” to Strike 3’s original copyrighted 3 Works. Ex. C ¶¶ 7–11; ECF No. 1 ¶¶ 34–35. Plaintiff’s Complaint also alleges Defendant 4 used BitTorrent to copy and distribute the copyrighted works without authorization, and 5 that the infringement was continuous and ongoing. ECF No. 1 ¶¶ 4, 19–30, 33, 33–36, 44– 6 46. Thus, Plaintiff’s Complaint has stated a claim for copyright infringement against the 7 Doe Defendant sufficient to survive a motion to dismiss. Additionally, Plaintiff has alleged 8 sufficient facts to show it could withstand a motion to dismiss for lack of personal 9 jurisdiction or a motion for improper venue, because Defendant’s IP address was traced to 10 a location in this District. Accordingly, the Court concludes Plaintiff has met the third 11 prong necessary to establish good cause for granting early discovery. 12 IV. 13 For the reasons set forth above, and for good cause shown, the Court GRANTS 14 Plaintiff’s ex parte application for leave to serve a subpoena prior to a Rule 26(f) 15 conference. ECF No. 4. However, the Court is cognizant of the potential embarrassment of 16 being identified in this type of case and “shares the growing concern about unscrupulous 17 tactics used by certain plaintiffs, especially in the adult film industry, to shake down the 18 owners of IP addresses.” Malibu Media, LLC v. Does 1-5, No. 12-Civ-2950-JPO, 2012 WL 19 2001968, at *1 (S.D.N.Y. June 1, 2012). Anticipating and sharing these concerns, Plaintiff 20 invites the Court to issue a protective order establishing procedural safeguards if the Court 21 finds such procedures appropriate. ECF No. 4-1 at 18 (citing Strike 3 Holdings, LLC v. 22 Doe, No. 17CV2317-JAH (BLM), 2017 WL 6389848, at *3-*4 (S.D. Cal. Dec. 14, 2017) 23 and Strike 3 Holdings, LLC v. Doe, No. 1:18-CV-12585-NLH-JS, 2020 WL 3567282 24 (D.N.J. June 30, 2020)). Accordingly, the Court ORDERS as follows: 25 1. Plaintiff shall attach a copy of this Order to any subpoena. CONCLUSION 26 27 28 Copyright Office registration information of the works that correspond with those hash files. ECF No. 1-2. 8 3:23-cv-00702-RBM-AHG 1 2. Plaintiff may serve the ISP, Cox Communications, with a Rule 45 subpoena 2 commanding the ISP to provide Plaintiff with only the true name and address 3 of the Defendant to whom the ISP assigned an IP address as set forth on 4 Exhibit A to the Complaint. The ISP is not to release the Defendant’s 5 telephone number or email address. 6 3. Within fourteen (14) calendar days after service of the subpoena, the ISP shall 7 notify the subscriber that his or her identity has been subpoenaed by Plaintiff, 8 in compliance with 47 U.S.C. § 551(c)(2)(B) (“A cable operator may disclose 9 such [personal identifying] information if the disclosure is . . . made pursuant 10 to a court order authorizing such disclosure, if the subscriber is notified of 11 such order by the person to whom the order is directed.”). The ISP must also 12 provide a copy of this Order along with the required notice to the subscriber 13 whose identity is sought pursuant to this Order. 14 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 15 calendar days from the date of such notice to challenge the disclosure of his 16 or her name and contact information by filing an appropriate pleading with 17 this Court contesting the subpoena. A subscriber who moves to quash or 18 modify the subpoena may proceed anonymously as “John Doe,” and shall 19 remain anonymous until the Court orders that the identifying information may 20 be released. 21 5. If the ISP wishes to move to quash the subpoena, it shall do so before the 22 return date of the subpoena. The return date of the subpoena must allow for at 23 least forty-five (45) days from service to production. If a motion to quash or 24 other challenge is brought, the ISP shall preserve the information sought by 25 Plaintiff in the subpoena pending resolution of such motion or challenge. 26 6. Plaintiff may only use the information disclosed in response to a Rule 45 27 subpoena served on the ISP for the purpose of protecting and enforcing 28 Plaintiff’s rights as set forth in its Complaint. If Defendant wishes to proceed 9 3:23-cv-00702-RBM-AHG 1 anonymously, Plaintiff may not release any identifying information without a 2 court order allowing the release of the information. 3 IT IS SO ORDERED. 4 5 Dated: May 8, 2023 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 3:23-cv-00702-RBM-AHG
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