Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 STRIKE 3 HOLDINGS, LLC, Case No.: 3:26-cv-04159-RBM-JLB 11 Plaintiff, ORDER GRANTING EX PARTE 12 v. APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 13 JOHN DOE subscriber assigned IP SUBPOENA PRIOR TO A RULE address 70.95.65.93, 14 26(f) CONFERENCE Defendant. 15 [ECF No. 4] 16 17 Before the Court is Plaintiff’s Ex Parte Application for Leave to Serve a Third-Party 18 Subpoena Prior to a Rule 26(f) Conference. (ECF No. 4.) No opposition has been filed, 19 as no defendants have been served or named in this case. For the reasons set forth below, 20 the Application is GRANTED. 21 I. BACKGROUND 22 Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) alleges copyright infringement against 23 a John Doe defendant. (ECF No. 1 (“Complaint”).) Plaintiff alleges that it is the copyright 24 owner of motion pictures distributed through adult content websites Blacked, Blacked Raw, 25 MILFY, Slayed, Tushy, Tushy Raw, Vixen, and Wifey. (Id. at ¶¶ 2, 3.) Plaintiff alleges that 26 27 28 1 between May 8, 2024, and June 18, 2026, the person or entity assigned Internet Protocol 2 (“IP”) address 70.95.65.93 illegally downloaded and distributed fifty-five (55) of 3 Plaintiff’s motion pictures through use of the online BitTorrent File Distribution Network. 4 (Id. at ¶¶ 4, 12, 33–47.) On May 22, 2026, Plaintiff filed this action against Defendant 5 “John Doe subscriber assigned IP address 70.95.65.93.” (ECF No. 1.) The Complaint 6 alleges a single count of direct copyright infringement. (Id. at ¶¶ 51–56.) 7 Since Defendant used the internet to anonymously commit the alleged infringement, 8 Plaintiff knows Defendant only by his, her, or its IP address that Plaintiff believes was 9 assigned to Defendant by the Internet Service Provider (“ISP”) Spectrum. (Id. at ¶ 5.) In 10 the Application before the Court, Plaintiff asserts that Spectrum is the owner of 11 Defendant’s IP address and, thus, “is the only party with the information necessary to 12 identify Defendant by correlating the IP address with John Doe’s identity.” (ECF No. 4-1 13 at 7.) Therefore, Plaintiff seeks leave to serve a Rule 45 subpoena on Spectrum to obtain 14 the name and address associated with the IP address in question. (Id. at 8.) 15 II. LEGAL STANDARD 16 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 17 of Civil Procedure 26(f) unless authorized by court order. Fed. R. Civ. P. 26(d)(1). 18 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 19 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 20 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 21 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 22 conference are granted upon a showing of good cause by the moving party, which may be 23 found “where the need for expedited discovery, in consideration of the administration of 24 25 26 1 Although Plaintiff does not specifically allege the infringement period in the 27 Complaint, ECF No. 1-2 is a table reflecting the alleged infringing activity that the subscriber assigned IP address 70.95.65.93 engaged in between May 8, 2024, and 28 1 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 2 Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). “A district court’s decision to grant 3 discovery to determine jurisdictional facts is a matter of discretion.” Colombia Ins. Co., 4 185 F.R.D. at 578. 5 District courts in the Ninth Circuit apply a three-factor test to determine whether 6 good cause exists to allow for expedited discovery to identify a Doe defendant. Id. at 578– 7 80. “First, the plaintiff should identify the missing party with sufficient specificity such 8 that the Court can determine that defendant is a real person or entity who could be sued in 9 federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps taken to 10 locate the elusive defendant” to ensure that the plaintiff has made a good faith effort to 11 identify and serve process on the defendant. Id. at 579. Third, the plaintiff “should 12 establish to the Court’s satisfaction that plaintiff’s suit against defendant could withstand 13 a motion to dismiss.” Id. “Lastly, the plaintiff should file a request for discovery with the 14 Court, along with a statement of reasons justifying the specific discovery requested as well 15 as identification of a limited number of persons or entities on whom discovery process 16 might be served and for which there is a reasonable likelihood that the discovery process 17 will lead to identifying information about defendant that would make service of process 18 possible.” Id. at 580. 19 III. DISCUSSION 20 A. Identification of Missing Party with Sufficient Specificity 21 For the Court to grant Plaintiff’s Application, Plaintiff must first identify Defendant 22 with enough specificity to enable the Court to determine whether Defendant is a real person 23 or entity who is subject to the Court’s jurisdiction. See Colombia Ins. Co., 185 F.R.D. at 24 578. The Court finds that Plaintiff has met this burden. 25 Courts in the Ninth Circuit have found that “a plaintiff identifies Doe defendants 26 with sufficient specificity” in cases such as this one “by providing the unique IP addresses 27 assigned to an individual defendant on the day of the allegedly infringing conduct, and by 28 using ‘geolocation technology’ to trace the IP addresses to a physical point of origin.” 808 1 Holdings, LLC v. Collective of December 29, 2011 Sharing Hash 2 E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12cv00186 MMA (RBB), 3 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see also Pink Lotus Entm’t, LLC v. 4 Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986, at *3 (N. D. Cal. June 21, 2011) 5 (finding that the plaintiff met its burden to identify the Doe defendants with sufficient 6 specificity by identifying the Doe defendants’ IP addresses and then using geolocation 7 technology to trace the IP addresses to a point of origin). 8 Here, Plaintiff has sufficiently demonstrated that Defendant is likely subject to the 9 Court’s jurisdiction. Plaintiff attached to its Complaint a table reflecting that the subscriber 10 assigned IP address 70.95.65.93 engaged in allegedly infringing activity between 11 May 8, 2024, and June 18, 2026, in San Diego, California. (ECF No. 1-2.) To substantiate 12 its claims, Plaintiff attached four supporting declarations. (ECF No. 4-2.) 13 The first is the declaration of Jorge Arco, an employee of Plaintiff’s parent company, 14 General Media Systems. (ECF No. 4-2 at 2–19.) Within his declaration Arco describes 15 that pirated content is a significant issue, and why Plaintiff’s Infringement Detection 16 System, VXN Scan, and its Cross Reference Tool were developed. (Id. at 7–10.) Through 17 these systems, including BitTorrent, relevant software, and the PCAP Recorder, Plaintiff 18 can identify and capture the identifying IP address used for infringing transactions. (Id. 19 10–16.) The ISP that assigned a particular IP address, as well as the city and state that the 20 IP address traces to, is then determined with the help of the Maxmind database. (Id. at 17.) 21 Arco’s ninety-two-paragraph declaration sets forth additional, in-depth details of all six 22 components of the system, providing the Court with a thorough understanding of how the 23 system reliably identifies the IP addresses assigned to individuals infringing Plaintiff’s 24 movies and verifies the infringement. (See id. at 10–18.) 25 The second declaration is by Patrick Paige, a computer forensics expert retained by 26 Plaintiff to analyze and maintain evidence captured by VXN Scan. (ECF. No 4-2 at 21– 27 26.) Paige explains that VXN Scan “recorded numerous BitTorrent computer transactions 28 between the system and IP address 70.95.65.93 in the form of PCAPs.” (Id. at 23.) Paige 1 declares that using a program called Wireshark, he viewed and analyzed a PCAP received 2 from Plaintiff and was able to confirm that on June 18, 2026, “IP address 70.95.65.93 3 uploaded a piece or pieces of a file” with a hash value that identified Plaintiff’s playable 4 movie files. (Id. at 24.) Based on Paige’s experience in similar cases, he also declares that 5 Spectrum, Defendant’s ISP, “is the only entity that can correlate the IP address 6 [70.95.65.93] to its subscriber and identify Defendant as the person assigned the IP address 7 70.95.65.93 during the time of the alleged infringement.” (Id. at 26.) 8 The third declaration is by Susan B. Stalzer, an employee of Plaintiff. (ECF No. 4- 9 2 at 28–30.) Ms. Stalzer declares that she verified that each digital file VXN Scan received 10 through its transactions with IP address 70.95.65.93 were identical, strikingly similar, or 11 substantially similar to one of Plaintiff’s original copyrighted works. (Id. at 29–30.) As 12 part of the verification process, Stalzer confirms that she viewed each of the digital media 13 files side-by-side with Plaintiff’s original motion pictures. (Id. at 29.) 14 The last declaration is from Emilie Kennedy, Plaintiff’s in-house General Counsel. 15 (ECF No. 4-2 at 32–34.) Kennedy explains that after Plaintiff received data from VXN 16 Scan identifying IP address 70.95.65.93 as infringing its movies, it employed Maxmind’s 17 geolocation technology to locate the IP address within the Southern District of California.2 18 (Id. at 33.) 19 Based on the timing of the IP tracing efforts employed by Plaintiff, the documented 20 success of the Maxmind’s geolocation service and tracing of IP address 70.95.65.93 to 21 within San Diego, the Court concludes that Plaintiff has met its evidentiary burden of 22 showing that the IP address likely relates to a physical address within the Court’s 23 24 25 2 As noted by Plaintiff, this Court has previously accepted Maxmind’s geolocation service to determine location of IP addresses. (ECF No. 4-1 at 13) (citing Strike 3 Holdings 26 v. Doe, No. CV 17-2317-JAH (BLM), 2017 WL 6389848, at *2 (S.D. Cal. Dec. 14, 2017); 27 Cell Film Holdings, LLC v. Doe, No. CV 16-2584-BEN (BLM), 2016 WL 6523432, at *2 n.2 (S.D. Cal. Nov. 3, 2016); Criminal Prods., Inc. v. Doe, No. CV 16-2589 WQH (JLB), 28 1 jurisdiction. Accordingly, the Court finds Plaintiff has sufficiently satisfied the first prong 2 of the “good cause” test. 3 B. Previous Attempts to Locate Defendant 4 Next Plaintiff must identify all the steps it took to locate Defendant to demonstrate 5 to the Court that it has made a good faith effort to identify and serve process on Defendant. 6 Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 7 Plaintiff maintains that is has “diligently attempted to correlate Defendant’s IP 8 address to Defendant by searching for Defendant’s IP address on various web search tools.” 9 (ECF No. 4-1 at 14.) Plaintiff has also “review[ed] numerous sources of authority” such 10 as “legislative reports, agency websites, informational technology guides, [and] governing 11 case law” regarding whether it is possible to identify such a defendant by other means. 12 (Id.) Finally, Plaintiff “discussed the issue at length with computer investigators and cyber 13 security consultants.” (Id.) Plaintiff contends that subpoenaing the information from 14 Defendant’s ISP is the only remaining avenue by which Defendant can be identified. (See 15 id.) 16 Plaintiff’s contention is supported by the declaration of its retained computer 17 forensics expert who determined that IP address 70.95.65.93 was engaged in the allegedly 18 infringing activity on June 18, 2026. (See ECF No. 4-2 at 23–26.) Plaintiff’s expert also 19 declares that “Defendant’s ISP Spectrum is the only entity that can correlate IP address 20 [70.95.65.93] to its subscriber and identify Defendant as the person assigned this IP address 21 during the time of the alleged infringement.” (Id. at 26.) 22 Based on the foregoing, the Court is satisfied that Plaintiff has made a good faith 23 effort to locate Defendant and that Plaintiff cannot, on its own, locate Defendant with any 24 greater specificity than it already has. Accordingly, the Court finds that Plaintiff has 25 sufficiently satisfied the second prong of the “good cause” test. 26 C. Whether Plaintiff’s Complaint Could Withstand a Motion to Dismiss 27 Lastly, Plaintiff must establish that its Complaint could survive a motion to dismiss. 28 Columbia Inc. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 1 Plaintiff’s Complaint alleges a single claim for relief against Defendant, namely 2 direct copyright infringement. (ECF No. 1 at 8–9.) To survive a motion to dismiss for 3 failure to state a claim upon which relief can be granted, “a complaint must contain 4 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 5 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 6 Twombly, 550 U.S. 544, 570 (2007)). To state a claim for direct copyright infringement, a 7 plaintiff “must show: (1) ownership of a valid copyright; and (2) that the defendant violated 8 the copyright owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 9 357 F.3d 1072, 1076 (9th Cir. 2004). “In addition, direct infringement requires the plaintiff 10 to show causation (also referred to as ‘volitional conduct’) by the defendant.” Perfect 10, 11 Inc., v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). 12 Here, Plaintiff purports to be the owner of the fifty-five (55) copyrighted movies or 13 works at issue and asserts that each work was registered with the United States Copyright 14 Office. (ECF No. 1 at ¶¶ 1, 4, 49; ECF No. 4-1 at 16.) The exhibit attached to the 15 Complaint shows the hash values of the purportedly infringed works and the copyright 16 registration number for each of the works that correspond with those hash values. (ECF 17 No. 1-2.) Plaintiff further alleges that it has verified that Defendant is the user behind IP 18 address 70.95.65.93 who used the BitTorrent file network to “download . . . , cop[y], and 19 distribute . . . Plaintiff’s Works without authorization,” and that the infringement was 20 “continuous and ongoing.” (ECF No. 1 at ¶¶ 12, 34, 47, 48.) Lastly, Plaintiff alleges that 21 “[a]t no point in time did Plaintiff authorize, permit or consent to Defendant’s distribution 22 of its Works, expressly or otherwise.” (Id. at ¶ 54.) Plaintiff has, therefore, alleged the 23 prima facie elements of direct copyright infringement. Thus, the Court concludes 24 Plaintiff’s suit against Defendant will likely withstand a motion to dismiss. Accordingly, 25 the Court finds that Plaintiff has sufficiently satisfied the third prong of the “good cause” 26 test. 27 /// 28 1 D. Specific Discovery Request 2 Finally, before the Court grants Plaintiff’s Application, Plaintiff “should file a 3 request for discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580. Although 4 Plaintiff did not provide the Court with a proposed subpoena, there is sufficient information 5 before it for the Court to determine sufficient identifying information that would make 6 service of process on Defendant possible. And Plaintiff maintains the subpoena it intends 7 to issue upon Spectrum “will only demand the true name and address of Defendant,” the 8 subscriber of IP address 70.95.65.93. (ECF No. 4-1 at 8.) 9 E. Additional Considerations 10 Despite Plaintiff’s representations of good faith (ECF No. 1 at ¶ 46; ECF No. 4-1 at 11 9–10), the Court continues to share the concerns noted by other courts in this District 12 regarding “unscrupulous tactics used by certain plaintiffs, especially in the adult film 13 industry, to shake down the owners of IP addresses to exact quick and quiet settlements 14 from possibly innocent defendants who pay out only to avoid potential embarrassment.” 15 Malibu Media, LLC v. Doe, No. 3:16-cv-00786-JLS-NLS, 2016 WL 9488778, at *4 (S.D. 16 Cal. May 6, 2016) (quoting Malibu Media, LLC v. Does 1-5, No. 12 Civ. 2950 (JPO), 2012 17 WL 2001968, at *1 (S.D.N.Y. June 1, 2012)). To protect Defendant’s privacy, a limited 18 protective order is appropriate. 19 IV. CONCLUSION 20 For the reasons set forth above, the Court finds good cause to grant Plaintiff leave to 21 serve a Rule 45 subpoena upon Spectrum in advance of the Rule 26(f) conference. 22 Accordingly, the Court GRANTS Plaintiff’s Application (ECF No. 4) and ORDERS as 23 follows: 24 1. Plaintiff may serve on Spectrum a subpoena, pursuant to and in compliance 25 with the procedures of Federal Rule of Civil Procedure 45, seeking only the name and 26 address of the subscriber assigned IP address 70.95.65.93 for the relevant period of the 27 alleged infringement. Plaintiff shall not seek from Spectrum any other personally 28 identifiable information about the subscriber. 1 2. Plaintiff's subpoena to Spectrum must provide a minimum of forty-five (45) 2 calendar days’ notice before any production responsive to the subpoena shall be made to 3 || Plaintiff. 4 3. At the time Plaintiff serves its subpoena on Spectrum, Plaintiff shall also serve 5 |}on Spectrum a copy of this Order. 6 4. Within fourteen (14) calendar days after service of the subpoena, Spectrum 7 || shall notify the subscriber assigned IP address 70.95.65.93 that his, her, or its identity has 8 ||been subpoenaed by Plaintiff and shall provide the subscriber a copy of this Order with 9 || the required notice. 10 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 11 ||calendar days from the date of such notice to challenge Spectrum’s disclosure of his, her, 12 its name and address by filing an appropriate pleading with this Court contesting the 13 || subpoena. 14 6. If Spectrum seeks to modify or quash the subpoena, it shall do so as provided 15 || by Federal Rule of Procedure 45(d)(3). 16 7. In the event a motion to modify, quash, or otherwise challenge the subpoena 17 brought properly before the Court, Spectrum shall preserve the information sought by 18 || the subpoena pending resolution of any such motion. 19 8. Plaintiff may only use the information disclosed in response to a Rule 45 20 || subpoena served on Spectrum for the purpose of protecting and enforcing Plaintiffs □□□□□□ 21 set forth in the Complaint. 22 9. If Defendant wishes to proceed anonymously, Plaintiff may not release any 23 |\identifying information without a court order allowing the release of the information. 24 IT IS SO ORDERED. 25 ||Dated: August 6, 2026 - 26 Baladt n. Jill L. Burkhardt 27 ited States Magistrate Judge 28