Strike 3 Holdings, LLC v. John Doe

Opinion

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.: 22cv1626-RSH-MDD 12 Plaintiff, ORDER DENYING EX PARTE 13 v. APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE, subscriber assigned IP SUBPOENA PRIOR TO A RULE address 76.167.66.81, 15 26(f) CONFERENCE Defendant. 16 [ECF No. 4] 17 18 Before the Court is Strike 3 Holdings, LLC’s (“Plaintiff”) Ex Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) 20 Conference filed on November 9, 2022. (ECF No. 4). No Defendant has been 21 named or served. For the reasons discussed below, Plaintiff’s motion is 22 DENIED. 23 On October 10, 2022, Plaintiff filed a Complaint against “John Doe,” 24 allegedly a subscriber of Spectrum assigned IP address 104.6.139.104 25 (“Defendant”). (ECF No. 1). Plaintiff alleges that Defendant infringed on 26 Plaintiff’s copyrights in certain works by using the BitTorrent file 1 through the Internet without Plaintiff’s permission. (Id.). 2 Plaintiff seeks leave to conduct early discovery to learn the identity of 3 the user of the subject Internet Protocol (“IP”) address from the Internet 4 Service Provider (“ISP”) who leased the IP address to that user—allegedly 5 the Defendant—during the relevant period. Specifically, Plaintiff seeks an 6 order permitting it to serve a third-party subpoena on “Spectrum” requiring 7 it to disclose the name and address of the user associated with that IP 8 address. 9 Formal discovery generally is not permitted without a court order 10 before the parties have conferred pursuant to Federal Rule of Civil Procedure 11 26(f). Fed. R. Civ. P. 26(d)(1). A court may order such pre-conferral discovery 12 “to permit the plaintiff to learn the identifying facts necessary to permit 13 service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 14 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 15 Cir. 1980)). A plaintiff seeking such an order must, among other things, “file 16 a request for discovery with the Court . . . identif[ying] a limited number of 17 persons or entities on whom discovery process might be served and for which 18 there is a reasonable likelihood that the discovery process will lead to 19 identifying information about defendant that would make service of process 20 possible.” Id. at 580. 21 Plaintiff has failed to make that identification here. It asks the Court 22 for leave to issue a subpoena addressed to “Spectrum,” which a private 23 database of IP addresses identifies as the ISP that owns the IP address 24 associated with Defendant. (ECF No. 4 at 1–2; ECF No. 4-2, Ex. 1). Plaintiff 25 provides no further information about Spectrum, which does not appear to be 26 actively registered to do business in California. See California Secretary of 1 accessed November 30, 2022).1 Active businesses registered under that name 2 in California include Spectrum, LLC, an agricultural supplier, and Spectrum 3 Inc., a real estate business—not entities likely to provide Defendant’s 4 internet service. Id. At least 497 other entities are registered to do business 5 in California under names beginning with the word “Spectrum.” Id. 6 The Court cannot order that “Spectrum” be required to respond to 7 discovery without further specificity. Such an order would either be 8 impermissibly broad, allowing Plaintiff to take discovery from any entity 9 called “Spectrum,” see Columbia Ins. Co., 185 F.R.D. at 580 (plaintiff must 10 “identif[y] a limited number” of potential subpoena recipients), or too vague 11 to support enforcement of the ensuing subpoena against any specific 12 “Spectrum” entity. See id. at 577 (absent court order, plaintiffs may not 13 conduct discovery prior to serving defendant with process). 14 The Court recognizes that it previously has authorized this Plaintiff to 15 serve subpoenas on ISPs (including “Spectrum”) without any information 16 about the ISP beyond its name. See, e.g., Strike 3 Holdings, LLC v. Doe, Case 17 No. 22-cv-478-BAS-MDD, ECF No. 5 (May 5, 2022) (granting ex parte 18 application for leave to serve third-party subpoena on “Spectrum”). But the 19 reasons to avoid lending the Court’s imprimatur to a vaguely-directed 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 26 1 The Court takes judicial notice of the records of the California Secretary of 1 ||subpoena are compelling. That was an error which the Court declines to 2 ||repeat. 3 Plaintiffs Motion is DENIED. 4 IT IS SO ORDERED. Dated: December 1, 2022 Vitel bs. [ Hon. Mitchell D. Dembin 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27