Strike 3 Holdings, LLC v. Doe, No. 3:2022cv01363 - Document 4 (S.D. Cal. 2022)
Court Description: ORDER granting 3 Ex Parte Motion for Discovery for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Jill L. Burkhardt on 10/27/2022. (fth)
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Strike 3 Holdings, LLC v. Doe Doc. 4 Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.70 Page 1 of 11 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.: 22-cv-01363-TWR-JLB Plaintiff, 12 13 v. 14 JOHN DOE, Subscriber Assigned IP Address 23.119.229.181, 15 ORDER GRANTING EX PARTE MOTION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. 16 [ECF No. 3] 17 18 Before the Court is an Ex Parte Motion for Leave to Serve a Third-Party Subpoena 19 Prior to a Rule 26(f) Conference filed by Plaintiff Strike 3 Holdings, LLC (“Plaintiff”). 20 (ECF No. 3.) No opposition has been filed, as no defendant has been named or served in 21 this case. For the reasons set forth below, Plaintiff’s ex parte motion is GRANTED. 22 I. BACKGROUND 23 This is one of the numerous cases filed by Plaintiff alleging copyright infringement 24 claims against a John Doe defendant using the BitTorrent file-sharing system. 1 Plaintiff 25 26 27 1 28 From January 2020 to date, Strike 3 Holdings, LLC, has filed over one hundred cases, including this one, in this District. 1 22-cv-01363-TWR-JLB Dockets.Justia.com Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.71 Page 2 of 11 1 alleges that it is the copyright owner of motion pictures distributed through adult content 2 websites Blacked, Tushy, Vixen, and Blacked Raw. (ECF No. 1 ¶¶ 3–4.) Plaintiff alleges 3 that between May 25, 2022, and August 24, 2022,2 the person or entity assigned Internet 4 Protocol (“IP”) address 23.119.229.181 illegally downloaded and distributed twenty-eight 5 of Plaintiff’s motion pictures through his, her, or its use of the online BitTorrent file 6 distribution network. (Id. ¶¶ 4, 5, 18–42; ECF No. 1-2.) Plaintiff commenced this action 7 against Defendant “John Doe, subscriber assigned IP address 23.119.229.181” on 8 September 9, 2022, alleging a single cause of action of direct copyright infringement. 9 (ECF No. 1 ¶¶ 5, 48–53.) 10 Because Defendant used the Internet to commit the alleged infringement, Plaintiff 11 alleges that it knows Defendant only by his, her, or its IP address, which was assigned to 12 Defendant by the Internet Service Provider (“ISP”), AT&T U-verse. (Id. ¶¶ 5, 13.) In the 13 instant motion, Plaintiff asserts that AT&T U-verse is the owner of Defendant’s IP address, 14 and thus, “is the only party with the information necessary to identify Defendant.” 15 (ECF No. 3-1 at 7.) Plaintiff therefore seeks leave to serve a Rule 45 subpoena on AT&T 16 U-verse requesting the true name and address associated with IP address 23.119.229.181. 17 (Id. at 8.) Without Defendant’s identity, Plaintiff cannot serve Defendant and prosecute 18 this case. (Id.) 19 II. LEGAL STANDARD 20 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 21 of Civil Procedure 26(f) unless authorized by court order. Fed. R. Civ. P. 26(d)(1). 22 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 23 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 24 25 26 27 28 2 Plaintiff does not specifically allege this infringement period in the Complaint. However, attached as an exhibit to the Complaint is a table reflecting that the subscriber assigned IP address 23.119.229.181 engaged in allegedly infringing activity between May 25, 2022 and August 24, 2022. (ECF No. 1-2.) 2 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.72 Page 3 of 11 1 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 2 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 3 conference are granted upon a showing of good cause by the moving party, which may be 4 found “where the need for expedited discovery, in consideration of the administration of 5 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 6 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 7 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 8 185 F.R.D. at 578. 9 District courts in the Ninth Circuit apply a three-factor test to determine whether 10 good cause exists to allow for expedited discovery to identify a Doe defendant. Id. at 578– 11 80. “First, the plaintiff should identify the missing party with sufficient specificity such 12 that the Court can determine that [the] defendant is a real person or entity who could be 13 sued in federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps 14 taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith 15 effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff “should 16 establish to the Court’s satisfaction that [the] plaintiff’s suit against [the] defendant could 17 withstand a motion to dismiss.” Id. “Lastly, the plaintiff should file a request for discovery 18 with the Court, along with a statement of reasons justifying the specific discovery requested 19 as well as identification of a limited number of persons or entities on whom discovery 20 process might be served and for which there is a reasonable likelihood that the discovery 21 process will lead to identifying information about [the] defendant that would make service 22 of process possible.” Id. at 580. 23 24 III. A. DISCUSSION Identification of Missing Party with Sufficient Specificity 25 For the Court to grant Plaintiff’s motion, Plaintiff must first identify Defendant with 26 enough specificity to enable the Court to determine that Defendant is a real person or entity 27 who is subject to the Court’s jurisdiction. See Columbia Ins. Co., 185 F.R.D. at 578. The 28 Court finds that Plaintiff has met this burden. 3 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.73 Page 4 of 11 1 Courts in the Ninth Circuit have determined that “a plaintiff identifies Doe 2 defendants with sufficient specificity” in cases like the instant case “by providing the 3 unique IP addresses assigned to an individual defendant on the day of the allegedly 4 infringing conduct, and by using ‘geolocation technology’ to trace the IP addresses to a 5 physical point of origin.” 808 Holdings, LLC v. Collective of December 29, 2011 Sharing 6 Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12-cv-00186 MMA 7 (RBB), 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see also Pink Lotus Entm’t, 8 LLC v. Does 1–46, No. C-11-02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) 9 (finding that the plaintiff met its burden to identify the Doe defendants with sufficient 10 specificity by identifying the Doe defendants’ IP addresses and then using geolocation 11 technology to trace the IP addresses to a point of origin). 12 Here, Plaintiff has sufficiently demonstrated that Defendant is a real person or entity 13 likely subject to the Court’s jurisdiction. Plaintiff attached to its Complaint a table 14 reflecting that the subscriber assigned IP address 23.119.229.181 engaged in allegedly 15 infringing activity between May 25, 2022, and August 24, 2022, in San Diego, California. 16 (ECF No. 1-2.) To substantiate these claims, Plaintiff attached four declarations to the 17 instant motion. 18 Plaintiff first attached the Declaration of David Williamson, an independent 19 contractor hired by Plaintiff as an Information Systems and Management Consultant. 20 (ECF No. 3-2 at 1–15 (“Ex. A”).) Mr. Williamson states that he “oversaw the design, 21 development, and overall creation of the infringement detection system called VXN Scan[,] 22 which [Plaintiff] both owns and uses to identify the IP addresses used by individuals 23 infringing Plaintiff’s movies via the BitTorrent protocol.” (Ex. A ¶ 40.) Mr. Williamson’s 24 declaration explains in detail how VXN Scan operates and its six components. One 25 component of VXN Scan is a proprietary BitTorrent client that emulates the behavior of a 26 standard BitTorrent client by repeatedly downloading data pieces from peers within the 27 BitTorrent network that are distributing Plaintiff’s movies. (Id. ¶¶ 52–55.) Another 28 component of VXN Scan is the PCAP Recorder, which records infringing BitTorrent 4 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.74 Page 5 of 11 1 computer transactions in the form of PCAPs, or packet captures. (Id. ¶¶ 57–70.) The 2 PCAPs contain the IP addresses that connect to the Proprietary Client and send pieces of 3 the computer file containing an infringing copy of one of Plaintiff’s movies to the 4 Proprietary Client through the BitTorrent network. (Id. ¶¶ 57–59.) Not only do PCAPs 5 record the IP addresses used in the network transaction, but they also record the date and 6 time of the transaction, the port number used, and the BitTorrent client used to accomplish 7 each transaction. (Id. ¶ 61.) PCAPs also identify the “Info Hash value that was used to 8 obtain the transacted piece.” (Id. ¶ 62.) This information identifies the data that was shared 9 in the recorded transaction as part of a file containing an infringing copy of one of 10 Plaintiff’s movies. (Id.) This Order touches on only two of the components of VXN Scan, 11 but Mr. Williamson’s eighty-one-paragraph declaration sets forth additional, in-depth 12 details of all six components of the system, providing the Court with a thorough 13 understanding of how the system reliably identifies the IP addresses assigned to individuals 14 infringing Plaintiff’s movies and verifies the infringement. (See id. ¶¶ 63–81.) 15 Second, Plaintiff attached the Declaration of Patrick Paige, a computer forensics 16 expert Plaintiff retained to analyze and retain evidence captured by VXN Scan. 17 (ECF No. 3-2 at 16–22 (“Ex. B”).) Mr. Paige explains that VXN Scan “recorded numerous 18 BitTorrent computer transactions between the system and IP address 23.119.229.181.1 in 19 the form of PCAPs.” (Ex. B ¶ 13.) Mr. Paige states that, using a program called Wireshark, 20 he viewed and analyzed a PCAP he received from Plaintiff and was able to confirm that on 21 August 24, 2022, “IP address 23.119.229.181 uploaded a piece or pieces of a file 22 corresponding to hash value 42920509D6F4FE3676865E34D5507154D6A0F712 to VXN 23 Scan.” (Id. ¶¶ 16–19.) The hash value, or Info Hash, is the data used by BitTorrent to 24 identify and locate other pieces of a desired file; in this case, the desired file contained an 25 infringing copy of one of Plaintiff’s movies. (Id. ¶ 22; see also ECF No. 1-2 at 1.) Based 26 on his experience in similar cases, Mr. Paige opines that AT&T U-verse, Defendant’s ISP, 27 “is the only entity that can correlate the IP address [23.119.229.181] to its subscriber and 28 5 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.75 Page 6 of 11 1 identify Defendant as the person assigned [this] IP address . . . during the time of the alleged 2 infringement.” (Id. ¶ 28.) 3 Third, Plaintiff attached the Declaration of Susan B. Stalzer, an employee of 4 Plaintiff’s who verified that each digital file VXN Scan received through its transactions 5 with IP address 23.119.229.181was identical, strikingly similar, or substantially similar to 6 one of Plaintiff’s original copyrighted works. (ECF No. 3-2 at 23–26 (“Ex. C”).) To do 7 so, Ms. Stalzer viewed each of the digital media files side-by-side with Plaintiff’s original 8 films. (Ex. C ¶¶ 8–10.) 9 Last, Plaintiff attached the Declaration of Emilie Kennedy, Plaintiff’s in-house 10 General Counsel. (ECF No. 3-2 at 27–30 (“Ex. D”).) Ms. Kennedy explains that after 11 Plaintiff received data from VXN Scan identifying IP address 23.119.229.181 as infringing 12 its movies, “the IP address was automatically inputted into Maxmind’s Geolocation 13 Database” on September 1, 2022. 3 (Ex. D ¶ 4.) “Maxmind [then] determined that the IP 14 address traced to a location in San Diego, California, which is within this Court’s 15 jurisdiction.” 16 23.119.229.181 again into the Maxmind Database “[p]rior to filing its Complaint” and 17 “before filing [her] [D]eclaration” on September 20, 2022, and both times the IP address 18 traced to San Diego, California. (Id. ¶¶ 6–7.) In its motion, Plaintiff argues that this Court (Id. ¶ 5.) Ms. Kennedy states that Plaintiff inputted IP address 19 20 21 22 23 24 25 26 27 28 3 Mr. Williamson provides in his declaration that: Maxmind is “an industry-leading provider of IP intelligence and online fraud detection tools.” “Over 5,000 companies use GeoIP data to locate their Internet visitors and show them relevant content and ads, perform analytics, enforce digital rights, and efficiently route Internet traffic.” Maxmind is not “software” or technology, but . . . a database. Maxmind compiles information it receives from Internet Service Providers (ISPs) containing the city and state locations of the users of the ISPs and their respective IP addresses. Maxmind maintains and updates this list weekly and sells access to it. (Ex. A ¶ 77 (footnotes omitted).) 6 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.76 Page 7 of 11 1 has previously “accepted Maxmind’s findings for purposes of allowing expedited 2 discovery,” citing, inter alia, Crim. Prods., Inc. v. Doe-72.192.163.220, No. 16-CV-2589 3 WQH (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov. 18, 2016). (ECF No. 3-1 at 13.) 4 Based on Plaintiff’s IP address tracing efforts, the timing of its efforts, and Plaintiff’s 5 continued tracing of IP address 23.119.229.181 to a location within San Diego, California, 6 the Court concludes that Plaintiff has met its evidentiary burden of identifying Defendant 7 with sufficient specificity and has shown that Defendant’s IP address likely relates to a 8 physical address within the Court’s jurisdiction. 9 B. Previous Attempts to Locate Defendant 10 Plaintiff must next identify all steps it took to locate Defendant to ensure the Court 11 that it has made a good-faith effort to identify and serve process on Defendant. 12 See Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this 13 burden. 14 In its motion, Plaintiff states that it has diligently attempted to locate Defendant by 15 searching for Defendant’s IP address using online search engines and “various web search 16 tools.” (ECF No. 3-1 at 14.) Plaintiff has also “review[ed] numerous sources of authority,” 17 such as “legislative reports, agency websites, informational technology guides, [and] 18 governing case law” regarding whether it is possible to identify such a defendant by other 19 means and has “discussed the issue at length with computer investigators and cyber security 20 consultants.” (Id.) Plaintiff argues that it cannot determine any other means of obtaining 21 Defendant’s identity other than through subpoenaing the information from Defendant’s 22 ISP, as it has “exhausted all other alternatives for identifying Defendant.” (Id.) 23 Further, as discussed above, Plaintiff retained Mr. Paige, a computer forensics 24 expert, who analyzed the data captured by VXN Scan and was able to determine that IP 25 address 23.119.229.181 was engaged in the allegedly infringing activity on 26 August 24, 2022. (See Ex. B ¶¶ 13–26.) Mr. Paige also opined that Defendant’s ISP is the 27 only entity that can correlate IP address 23.119.229.181 to its subscriber and identify 28 Defendant as the person assigned this IP address during the time of the alleged 7 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.77 Page 8 of 11 1 infringement. (Id. ¶ 28.) 2 Based on the foregoing, the Court is satisfied that Plaintiff has attempted in good 3 faith to locate Defendant and that Plaintiff cannot, on its own, identify Defendant with any 4 greater specificity than as the subscriber assigned by AT&T U-verse to IP address 5 23.119.229.181. Accordingly, the Court finds that Plaintiff has made a good-faith effort 6 to identify and locate Defendant before filing the instant motion. 7 C. 8 9 Whether Plaintiff’s Complaint Could Withstand a Motion to Dismiss Lastly, Plaintiff must establish that its Complaint could survive a motion to dismiss. Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 10 Plaintiff’s Complaint alleges a single cause of action against Defendant: direct 11 copyright infringement. (ECF No. 1 ¶¶ 48–53.) To survive a motion to dismiss for failure 12 to state 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 face.’” 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 15 544, 570 (2007)). To state a claim of direct copyright infringement, a plaintiff “must show: 16 (1) ownership of a valid copyright; and (2) that the defendant violated the copyright 17 owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 18 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). “In addition, direct infringement 19 requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 20 defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). 21 In the Complaint, Plaintiff alleges to be the owner of the copyrighted movies or 22 “works” at issue and asserts that each work was registered with the United States Copyright 23 Office. (ECF No. 1 ¶¶ 2, 46.) Exhibit A to the Complaint shows the hash values of the 24 purportedly infringed works and the copyright registration number for each of the works 25 that correspond with those hash values. (ECF No. 1-2.) Plaintiff further alleges that 26 Defendant is the user behind IP address 23.119.229.181 who used the BitTorrent file 27 network to “illegally download and distribute Plaintiff’s copyrighted motion pictures” and 28 that the infringement was “continuous and ongoing.” (ECF No. 1 ¶¶ 13, 29, 45.) Lastly, 8 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.78 Page 9 of 11 1 Plaintiff alleges that “[a]t no point in time did [it] authorize, permit or consent to 2 Defendant’s copying, distribution, performance and/or display of its Works, expressly or 3 otherwise.” (Id. ¶ 51.) 4 The Court finds that Plaintiff has alleged a prima facie case of direct copyright 5 infringement and therefore, its Complaint would likely withstand a motion to dismiss by 6 Defendant. 7 D. Specific Discovery Request 8 Finally, before the Court grants Plaintiff’s Motion, Plaintiff “should file a request 9 for discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580. Plaintiff has not 10 provided the Court with a proposed subpoena, but the Court has sufficient information to 11 determine that “there is a reasonable likelihood that [a subpoena] will lead to identifying 12 information about [D]efendant that would make service of process possible.” Id. Plaintiff 13 states that it plans to issue a subpoena upon AT&T U-verse, Defendant’s ISP, requesting 14 “the true name and address” of Defendant, the subscriber of IP address 23.119.229.181. 15 (ECF No. 3-1 at 8.) Further, Plaintiff provides that AT&T U-verse is the only entity that 16 can identify Defendant by his, her, or its IP address. (Ex. B ¶ 28.) Accordingly, the Court 17 finds that Plaintiff need not file the proposed subpoena with the Court. 18 IV. CONCLUSION 19 For the reasons set forth above, the Court finds good cause to grant Plaintiff leave to 20 serve a Rule 45 subpoena upon AT&T U-verse in advance of the Rule 26(f) conference. 21 However, despite Plaintiff’s representations of good faith (ECF No. 3-1 at 9–10), the Court 22 shares the concern noted by other courts in this District of “‘unscrupulous tactics [being] 23 used by certain plaintiffs, especially in the adult film industry, to shake down the owners 24 of IP addresses’ to exact quick and quiet settlements from possibly innocent defendants 25 who pay out only to avoid potential embarrassment.” Malibu Media, LLC v. Doe, No. 16- 26 cv-00786-JLS-NLS, 2016 WL 9488778, at *4 (S.D. Cal. May 6, 2016) (quoting Malibu 27 Media, LLC v. Does 1–5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at *1 (S.D.N.Y. June 28 1, 2012)). The Court therefore finds that a limited protective order is necessary to protect 9 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.79 Page 10 of 11 1 Defendant’s privacy. Further, Plaintiff does not oppose a protective order establishing 2 procedural safeguards, “should the Court find such procedures to be appropriate.” (ECF 3 No. 3-1 at 18.) Accordingly, the Court GRANTS Plaintiff’s ex parte motion (ECF No. 4) 4 and ORDERS as follows: 5 1. Plaintiff may serve on AT&T U-verse a subpoena, pursuant to and compliant 6 with the procedures of Federal Rule of Civil Procedure 45, seeking only the name and 7 address of the subscriber assigned IP address 23.119.229.181 for the relevant time period 8 of the alleged infringement. Plaintiff shall not seek from AT&T U-verse any other 9 personally identifiable information about the subscriber. 10 2. Plaintiff’s subpoena to AT&T U-verse must provide a minimum of forty-five 11 (45) calendar days’ notice before any production responsive to the subpoena shall be made 12 to Plaintiff. 13 14 15 3. At the time Plaintiff serves its subpoena on AT&T U-verse, Plaintiff shall also serve on AT&T U-verse a copy of this Order. 4. Within fourteen (14) calendar days after service of the subpoena, AT&T U- 16 verse shall notify the subscriber assigned IP address 23.119.229.181 that his, her, or its 17 identity has been subpoenaed by Plaintiff and shall provide the subscriber a copy of this 18 Order with the required notice. 19 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 20 calendar days from the date of such notice to challenge AT&T U-verse’s disclosure of his, 21 her, or its name and address by filing an appropriate pleading with this Court contesting 22 the subpoena. 23 6. 24 25 If AT&T U-verse seeks to modify or quash the subpoena, it shall do so as provided by Federal Rule of Civil Procedure 45(d)(3). 7. In the event a motion to quash, modify, or otherwise challenge the subpoena 26 is brought properly before the Court, AT&T U-verse shall preserve the information sought 27 by the subpoena pending the resolution of any such motion. 28 10 22-cv-01363-TWR-JLB Case 3:22-cv-01363-TWR-JLB Document 4 Filed 10/27/22 PageID.80 Page 11 of 11 1 8. Plaintiff may only use the information disclosed in response to a Rule 45 2 subpoena served on AT&T U-verse for the purpose of protecting and enforcing Plaintiff’s 3 rights as set forth in the Complaint (ECF No. 1). If Defendant wishes to proceed 4 anonymously, Plaintiff may not release any identifying information without a court order 5 allowing the release of the information. 6 7 IT IS SO ORDERED. Dated: October 27, 2022 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 22-cv-01363-TWR-JLB
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