1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 STRIKE 3 HOLDINGS, LLC, Case No. 20-cv-08351-VKD

9 Plaintiff,

ORDER GRANTING EX PARTE

10 v. APPLICATION FOR LEAVE TO

SERVE SUBPOENA

11 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 69.215.145.39, Re: Dkt. No. 8 12 Defendant.

13 14 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks leave to serve a third-party subpoena on 15 AT&T U-verse prior to a Rule 26(f) conference. 16 Strike 3 has established that good cause exists for it to serve a third-party subpoena on 17 AT&T U-verse, the above-referenced subscriber’s internet service provider. See Gillespie v. 18 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA, 19 2008 WL 4104214, at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can 20 identify the defendant with sufficient specificity such that the Court can determine that the 21 defendant is a real person or entity who could be sued in federal court, (2) it has identified 22 previous steps taken to locate the elusive defendant, (3) its action against the defendant could 23 withstand a motion to dismiss, and (4) there is a reasonable likelihood of being able to identify the 24 defendant through discovery such that service of process would be possible. See Columbia Ins. 25 Co. v. Seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999). Once Strike 3 learns the 26 defendant’s identity, it cannot rely on a bare allegation that a defendant is the registered subscriber 27 of an internet protocol address associated with infringing activity to state a plausible claim for 1 1144 (9th Cir. 2018). However, at this stage of these proceedings, and upon the record presented, 2 || Strike 3 properly may serve discovery to ascertain the defendant’s identity. See generally Glacier 3 || Films (USA), Inc. v. Turchin, 896 F.3d 1033, 1036, 1038 (9th Cir. 2018) (observing that the 4 |} district court’s case management order permitting “limited discovery from an Internet Service 5 || Provider to establish a potential infringer’s identity” was “‘a sensible way to manage its □□□□□□□□□□ 6 || Accordingly, the Court grants Strike 3’s application and orders as follows: 7 1. Strike 3 may serve a Rule 45 subpoena on AT&T U-verse commanding AT&T U- 8 verse to provide Strike 3 with the true name and address of the subscriber to whom AT&T U-verse 9 assigned IP address 69.215.145.39. Strike 3 shall attach a copy of this order to any such 10 subpoena. 11 2. AT&T U-verse shall serve a copy of the subpoena and a copy of this order on the 12 subscriber within 30 days of the date of service of the subpoena on AT&T U-verse. AT&T U- 5 13 verse may serve the subscriber using any reasonable means, including written notice sent to the 14 || subscriber’s last known address, transmitted either by first-class mail or via overnight service. 3 15 3. Strike 3 may only use the information disclosed in response to a Rule 45 subpoena a 16 || served on AT&T U-verse for the purpose of protecting and enforcing Strike 3’s rights as set forth 3 17 in its complaint. 18 4. AT&T U-verse may object to the Rule 45 subpoena, and may also seek a protective 19 || order. 20 If AT&T U-verse produces information regarding the identity of the subscriber to Strike 3, 21 Strike 3 shall not publicly disclose that information absent consent of the subscriber or leave of 22 court. 23 IT IS SO ORDERED. 24 Dated: December 10, 2020 25

7 VIRGINIA K. DEMARCHI United States Magistrate Judge 28