Opinion

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10 STRIKE 3 HOLDINGS, LLC, Case No: 26-cv-3228-H-DEB 11 12 Plaintiff, ORDER GRANTING EX PARTE MOTION FOR LEAVE TO SERVE 13 vs. THIRD-PARTY SUBPOENA 14 PRIOR TO A RULE 26(f) JOHN DOE subscriber assigned IP CONFERENCE 15 address 76.33.16.173, 16 Defendant. [DKT. NO. 4] 17 18 Before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a Third- 19 Party Subpoena Prior to a Rule 26(f) Conference. Dkt. No. 4. No defendant has 20 been named or served; therefore, no opposition was filed. For the reasons discussed 21 below, the Court GRANTS Plaintiff’s Motion. 22 I. BACKGROUND 23 On April 23, 2026, Plaintiff filed a complaint against Defendant “John Doe,” 24 who allegedly subscribes to and is assigned Spectrum, Internet Protocol (“IP”) 25 address 76.33.16.173. Dkt. No. 1. Plaintiff Strike 3 Holdings, LLC is the owner of 26 numerous adult motion pictures, which Plaintiff distributes through adult websites 27 and DVDs. Id. Plaintiff asserts Defendant is committing “rampant and wholesale 1 copyright infringement” by downloading, recording, and distributing copies of Plaintiff’s copyrighted motion pictures without authorization through the use of the 2 BitTorrent file distribution network. Id. 3 In this motion, Plaintiff seeks leave to conduct early discovery to learn 4 Defendant’s identity, prior to the mandated Rule 26(f) conference. Dkt. No. 4. 5 Specifically, Plaintiff seeks an order permitting it to serve a third-party subpoena 6 under Federal Rule of Civil Procedure 45 on Spectrum to determine the name and 7 8 address of the subscriber to the IP address at issue. Dkt. No. 4-1 at 7–8. Plaintiff seeks only “the true name and address of Defendant.” Id. at 8. Additionally, Plaintiff 9 represents to the Court it will only use this information to prosecute the claims made 10 in its complaint. Id. 11 12 II. LEGAL STANDARD 13 A party is generally not permitted to obtain discovery before the parties have 14 conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 15 26(d)(1). However, courts may authorize limited discovery so a plaintiff may 16 identify and serve an unknown defendant. Columbia Ins. Co. v. Seescandy.com, 185 17 F.R.D. 573, 577 (N.D. Cal. 1999) (“[C]ourts have made exceptions, permitting 18 limited discovery to ensue after filing of the complaint to permit the plaintiff to 19 learn the identifying facts necessary to permit service on the defendant.”). 20 Consistent with this generally recognized exception to Rule 26(f), the Ninth 21 Circuit has held that “‘where the identity of the alleged defendant[] [is] not [] known 22 prior to the filing of a complaint[,] the plaintiff should be given an opportunity 23 through discovery to identify the unknown defendants, unless it is clear that 24 discovery would not uncover the identities, or that the complaint would be 25 dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th 26 Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 27 1 A party who requests early or expedited discovery must demonstrate good 2 cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–76 (N.D. 3 Cal. 2002) (applying “the conventional standard of good cause in evaluating 4 Plaintiff’s request for expedited discovery”). Good cause is established through a 5 balancing test “where the need for expedited discovery, in consideration of the 6 administration of justice, outweighs the prejudice to the responding party.” Id. at 7 276. 8 To evaluate “good cause” for early discovery to identify John Doe 9 defendants, district courts in the Ninth Circuit consider whether the plaintiff: (1) 10 “identif[ies] the missing party with sufficient specificity such that the Court can 11 determine that the defendant is a real person or entity who could be sued in federal 12 court”; (2) “identif[ies] all previous steps taken to locate the elusive defendant” to 13 ensure that plaintiff has made a good faith effort to identify the defendant; and (3) 14 “establish[es] to the Court’s satisfaction that plaintiff’s suit against defendant could 15 withstand a motion to dismiss.” Columbia Ins., 185 F.R.D. at 578–80. Additionally, 16 the plaintiff must demonstrate the discovery will likely lead to identifying 17 information that will permit service of process. Id. at 580. These factors ensure the 18 expedited discovery procedure “will only be employed in cases where the plaintiff 19 has in good faith exhausted traditional avenues for identifying a civil defendant pre- 20 service, and will prevent use of this method to harass or intimidate.” Id. 21 III. DISCUSSION 22 Plaintiff contends there is good cause for this Court to allow expedited 23 discovery. Dkt. No. 4-1 at 11–17. The Court agrees.

24 A. Identification of Missing Party with Sufficient Specificity 25 To satisfy the first prong, Plaintiff must demonstrate the unknown defendant 26 is a real person or entity who would be subject to the jurisdiction of this Court. 27 Columbia Ins., 185 F.R.D. at 578. District courts in this circuit have determined “a 1 plaintiff identifies Doe defendants with sufficient specificity by providing the unique IP addresses assigned to an individual defendant on the day of the allegedly 2 infringing conduct, and by using ‘geolocation technology’ to trace the IP addresses 3 to a physical point of origin.” 808 Holdings, LLC v. Collective of December 29, 4 2011 Sharing Hash, 12-cv-0186-MMA-RBB, 2012 WL 12884688, at *4 (S.D. Cal. 5 May 4, 2012); see Openmind Solutions, Inc. v. Does 1-39, No. C-11-3311-MEJ, 6 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (concluding that plaintiff satisfied 7 the first factor by identifying the defendants’ IP addresses and by tracing the IP 8 addresses to a point of origin within the State of California); Pink Lotus Entm’t, 9 LLC v. Does 1-46, No. C-11-02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 10 2011) (same). Other courts have concluded that merely identifying the IP addresses 11 on the day of the alleged infringement satisfies this factor. 808 Holdings, 2012 WL 12 13 12884688, at *4 (collecting cases). 14 Here, Plaintiff has identified the Doe Defendant with sufficient specificity. 15 First, Plaintiff supports the present motion with a declaration by Jorge Arco, an 16 independent contractor hired by General Media Systems LLC, the parent company 17 of Plaintiff, as a Lead Systems Administrator and Enterprise Architect. Dkt. No. 4- 18 2 at 3–19 (“Ex. A”). Arco declares he “was part of a team that developed the 19 infringement detection system VXN Scan … which Strike 3 both owns and uses to 20 identify the IP addresses used by individuals infringing Plaintiff’s movies via the 21 BitTorrent protocol.” Ex. A at 9. Arco explains the VXN Scan system in detail, 22 which involves, in part, the development of a proprietary BitTorrent client that 23 emulates the behavior of a standard BitTorrent client by repeatedly downloading 24 data pieces from peers within the BitTorrent network that are distributing Plaintiff’s 25 movies. Id. at 12–13. Arco testifies that another component of the VXN Scan 26 system is the PCAP2 Recorder/Capture Card, which records the IP addresses 27 connecting to the Proprietary Client and sending the infringed copies of Plaintiff’s 1 movies to the Proprietary Client through the BitTorrent network. Id. at 12. Not only 2 does a PCAP (i.e., Packet Capture) contain the IP addresses used in the network 3 transaction, it also records the port number and BitTorrent client used to accomplish 4 each transaction, and the “Info Hash” associated with the infringing computer file, 5 which reflects the metadata of the underlying .torrent file being shared without 6 authorization. Id. at 13. The PCAP Capture Card records PCAPs in real time and 7 records perfect copies of every network packet received by the Proprietary Client. 8 Id. Although this Order touches only on two of the components of the VXN Scan 9 system, Arco’s declaration sets forth additional details of all six components of the 10 system, providing the Court a thorough understanding of how the system reliably 11 pinpoints the IP addresses used by individuals allegedly infringing Plaintiff’s 12 movies. 13 Second, Plaintiff submits a declaration by Patrick Paige, a computer forensics 14 expert retained by Plaintiff to analyze and retain forensic evidence captured by the 15 VXN Scan system. Dkt. No. 4-2 at 21–26 (“Ex. B”). Paige explains that VXN Scan 16 recorded numerous BitTorrent computer transactions with IP address 76.33.16.173 17 in the form of PCAPs, and that he reviewed the PCAP to confirm that it evidences 18 a recorded transaction with that IP address on April 6, 2026, at 02:02:49 UTC 19 involving the IP address uploading a piece or pieces of a file corresponding to the 20 hash value that is unique to one of Plaintiff’s movies. Ex. B. at 24–25. Strike 3 has 21 determined that Spectrum owns Defendant’s IP address. Dkt. No. 4-1 at 17. Paige 22 testified that based on his experience in similar cases, Defendant’s ISP, Spectrum, 23 is the only entity that can correlate the IP address 76.33.16.173 to its subscriber to 24 pinpoint Defendant’s identity. Ex. B at 26. 25 Third, Plaintiff submits a declaration by Susan Stalzer, one of Plaintiff’s 26 employees who verified that each digital file that the Proprietary Client received 27 through its transactions with IP address 76.33.16.173 is a copy of one of Plaintiff’s 1 copyrighted works, by viewing the unauthorized motion pictures corresponding 2 with the file hashes side-by-side with Plaintiff’s original movies. Dkt. No. 4-2 at 3 29–30 (“Ex. C”); see also Dkt. No. 1-2 (Exhibit A to the complaint, listing the hash 4 values of the 24 torrent files received by the Proprietary Client from the IP address 5 76.33.16.173. 6 Finally, Plaintiff provides a declaration by Emilie Kennedy, Plaintiff’s in- 7 house General Counsel. Dkt. No. 4-2 at 32–35 (“Ex. D”). Kennedy explains that 8 after Plaintiff received infringement data from VXN Scan identifying IP address 9 76.33.16.173 as infringing its works, the IP address was automatically input into 10 Maxmind’s Geolocation Database, which traced the IP address location to San 11 Diego, California, within this Court’s jurisdiction. Ex. D. at 33. Plaintiff has since 12 repeated the trace through the Geolocation Database twice more, prior to filing the 13 complaint and prior to filing the present Motion, confirming the IP address 14 continues to trace to this District. Id. The Court is satisfied that these multiple 15 geolocation traces over the course of multiple months indicating that the Defendant 16 is in San Diego are reliably accurate. 17 Based on the information above, the Court concludes Plaintiff makes a 18 sufficient showing that it seeks to sue a real person subject to the Court’s 19 jurisdiction. Likewise, the information sought will likely enable Plaintiff to identify 20 and serve Defendant; and, there is a reasonable likelihood that the discovery process 21 will lead to identifying information about defendant that would make service of 22 process possible. Therefore, the Court finds Plaintiff satisfied the “sufficient 23 specificity” threshold. 24 B. Previous Attempts to Locate Defendant 25 Next, Plaintiff is required to describe all steps taken to identify the Doe 26 defendant in a good-faith effort to locate and serve them. Plaintiff states that it 27 attempted to locate Defendant by searching for Defendant’s IP address using online 1 search engines and other web search tools. Dkt. No. 4-1 at 14. Plaintiff also 2 reviewed numerous sources of authority such as legislative reports, agency 3 websites, informational technology guides, regarding whether it is possible to 4 identify such a defendant by other means, and extensively discussed this issue with 5 its computer investigators and cyber security consultants. Id. Despite these efforts, 6 Plaintiff could not identify the Defendant. Id.; see also Ex. B at 26. Thus, the Court 7 finds Plaintiff has shown a good-faith effort to identify and locate Defendant before 8 resorting to filing the instant motion. 9 C. Whether Plaintiff Can Withstand a Motion to Dismiss 10 Lastly, Plaintiff must establish it could survive a motion to dismiss. See 11 Columbia Ins., 185 F.R.D. at 579. To survive a motion to dismiss for failure to state 12 a claim upon which relief can be granted, “a complaint must contain sufficient 13 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 14 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 15 Twombly, 550 U.S. 544, 570 (2007)). To present a prima facie case of copyright 16 infringement, Plaintiff must show: (1) ownership of a valid copyright; and (2) that 17 Defendant violated the copyright owner’s exclusive rights under the Copyright Act. 18 Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1153 (9th Cir. 19 2012). In addition, for direct infringement, Plaintiff is required to show causation 20 by Defendant. Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). 21 The complaint alleges Plaintiff owns a valid copyright in the works at issue, 22 which are registered with the United States Copyright Office. See Dkt. No. 1 23 (Compl. at 7–8). Plaintiff’s complaint also alleges Defendant used BitTorrent to 24 copy and distribute the copyrighted works without authorization, and that the 25 infringement was continuous and ongoing. Dkt. No. 1. Although the Court is not 26 conclusively deciding the matter, it appears the complaint could withstand a motion 27 to dismiss. 1 IV. CONCLUSION 2 For the reasons set forth above, and for good cause shown, the Court 3 GRANTS Plaintiff’s Motion for leave to serve a subpoena prior to a Rule 26(f) 4 conference. Dkt. No. 4. However, the Court is cognizant of the potential 5 embarrassment of being identified in this type of case and “shares the growing 6 concern about unscrupulous tactics used by certain plaintiffs, especially in the adult 7 film industry, to shake down the owners of IP addresses.” Malibu Media, LLC v. 8 Does 1-5, No. 12-Civ-2950-JPO, 2012 WL 2001968, at *1 (S.D.N.Y. June 1, 2012). 9 Anticipating and sharing these concerns, Plaintiff invites the Court to issue a 10 protective order establishing procedural safeguards if the Court finds such 11 procedures appropriate, which the Court does below. Dkt. No. 4-1 at 18. 12 Accordingly, the Court ORDERS as follows: 13 1. Plaintiff must attach a copy of this Order to any subpoena. 14 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP 15 to provide Plaintiff with only the true name and address of the Defendant to whom 16 the ISP assigned an IP address as set forth on Exhibit A to the complaint. The ISP 17 must not release the Defendant’s telephone number or email address. 18 3. Within fourteen (14) calendar days after service of the subpoena, the ISP 19 must notify the subscriber that his or her identity has been subpoenaed by Plaintiff. 20 The ISP must also provide a copy of this Order along with the required notice to the 21 subscriber whose identity is sought pursuant to this Order. 22 4. The subscriber whose identity has been subpoenaed must have thirty (30) 23 calendar days from the date of such notice to challenge the disclosure of his or her 24 name and contact information by filing an appropriate pleading with this Court 25 contesting the subpoena. A subscriber who moves to quash or modify the subpoena 26 may proceed anonymously as “John Doe,” and must remain anonymous until the 27 Court orders that the identifying information may be released. 1 5. If the ISP wishes to move to quash the subpoena, it must do so before the 2 ||subpoena’s return date, which must be at least forty-five(45) days from service. If 3 |}a motion to quash or other challenge is brought, the ISP must preserve the 4 || information sought by Plaintiff in the subpoena pending resolution of such motion 5 || or challenge. 6 6. If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5), 7 || then it shall comply with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order 8 Defendant. The term “cable operator” means any person or group of persons: 9 (A) who provides cable service over a cable system and directly or 10 through one or more affiliates owns a significant interest in such 11 cable system, or 12 (B) who otherwise controls or is responsible for, through any 13 arrangement, the management and operation of such a cable 14 system, it shall comply with 47 U.S.C. § 551(c)(2)(B), which 15 states: A cable operator may disclose such [personal identifying | 16 information if the disclosure is .. . made pursuant to a court 17 order authorizing such disclosure, if the subscriber is notified of 18 such order by the person to whom the order is directed. 19 7. Plaintiff may only use the information disclosed in response to a Rule 45 20 || subpoena served on the ISP for the purpose of protecting and enforcing Plaintiff's 21 ||/rights as set forth in its complaint. If Defendant wishes to proceed anonymously, 22 || Plaintiff may not release any identifying information without a court order allowing 23 || the release of the information. 24 IT IS SO ORDERED. 5 Dated: June 22, 2026 .

Daniel E. Butcher 27 United States Magistrate Judge 28