1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STRIKE 3 HOLDINGS, LLC, Case No. 23-cv-06066-EMC

8 Plaintiffs, ORDER GRANTING PLAINTIFF'S EX 9 v. PARTE APPLICATION FOR LEAVE

TO SERVIE THIRD-PARTY

10 JOHN DOE SUBSCRIBER ASSIGNED IP SUBPOENA

ADDRESS 24.4.211.84,

11 Defendants. Docket No. 8 12 13 Plaintiff Strike 3 Holdings, LLC has sued Defendant John Doe for copyright infringement. 14 According to Strike 3, John Doe has infringed 30 of Strike 3’s adult motion pictures using 15 BitTorrent protocol. Compl. ¶ 4. Currently pending before the Court is Strike 3’s ex parte 16 application for leave to serve a third-party subpoena prior to a Rule 26(f) conference. 17 The Court has reviewed the application, the supporting declarations, and the complaint. 18 Based on these materials, the Court finds Strike 3 has sufficiently established that it is entitled to 19 the early discovery requested which will enable it to determine the true name and address of John 20 Doe. The Court, however, takes this opportunity to endorse the recent decision of Judge Seeborg 21 in Strike 3 Holdings, LLC v. Doe, No. 23-cv-04339-RS, 2023 U.S. Dist. LEXIS 169496 (N.D. Cal. 22 Sept. 22, 2023). This Court’s rulings below are consistent with Judge Seeborg’s decision. 23 Finally, the Court notes that, although it is authorizing Strike 3 to take the discovery 24 requested, it is not precluding John Doe from filing a 12(b)(6) motion to dismiss nor is it 25 prejudging any such motion. The Court also advises Strike 3 that, upon obtaining the name and 26 address of John Doe, it has a Rule 11 obligation to determine whether to proceed with the lawsuit 27 and, in that regard, it should be mindful of the Ninth Circuit’s decision in Cobbler Nevada, LLC v. 1 the registered subscriber of an Internet Protocol (‘IP’) address associated with infringing activity is 2 [in]sufficient to state a claim for direct or contributory infringement”). 3 Accordingly, it is hereby ORDERED as follows: 4 1. Strike 3 has established that good cause exists to serve a third-party subpoena on 5 Comcast Cable (the “ISP”). Its motion is therefore granted. 6 2. Strike 3 may serve the ISP with a Rule 45 subpoena commanding the ISP to 7 provide Strike 3 with the true name and address of John Doe to whom the ISP assigned an IP 8 address as set forth in Exhibit A to the Complaint. Strike 3 shall attach a copy of this Order to any 9 such subpoena and a copy of Judge Seeborg’s decision. 10 3. Strike 3 may also serve a Rule 45 subpoena in the same manner as above on any 11 service provider that is identified in response to a subpoena as a provider of Internet services to 12 John Doe; the same requirements laid out for Comcast Cable in this Order will also apply to any 13 follow-on orders pursuant hereto. 14 4. If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5), then it 15 shall comply with 47 U.S.C. § 551(c)(2)(B) by sending a copy of this Order to John Doe. 16 5. Strike 3 shall also request the ISP forward a copy of this Order to the subscriber, 17 regardless of whether the ISP qualifies as a cable operator. If the ISP declines, Strike 3 shall serve 18 a copy of this Order on John Doe simultaneous to or before any other service or communication to 19 Strike 3. Strike 3 must file a copy of its request to the ISP on the docket. Alternatively to the 20 other requirements in this paragraph, Strike 3 may file an affidavit that it attests the ISP has 21 forwarded this order to John Doe before attempting to serve or communicate with John Doe. 22 6. Strike 3 may only use the information disclosed in response to a Rule 45 subpoena 23 served on the ISP for the purpose of protecting and enforcing Strike 3’s rights as set forth in its 24 Complaint. Specifically, Strike 3 must not publicly disclose the information obtained based on 25 this subpoena without leave of the Court – at least until John Doe has had an opportunity to file a 26 motion to proceed anonymously, or further discovery has been taken. All references to John 27 Doe’s identity must be redacted and filed under seal until further notice. 1 Doe, as it has represented it would. This filing must contain the relevant communications 2 concerning any proposed agreement, e.g., copies of emails related to confidentiality, or 3 descriptions of conversations with Defendant. 4 7. Comcast Cable, and/or any other ISP that receives a subpoena pursuant to this 5 Order, must preserve any subpoenaed information pending the resolution of any timely filed 6 motion to dismiss. 7 8 IT IS SO ORDERED. 9 10 Dated: December 11, 2023 LL 12 Oa he

EDWARD M. CHEN

13 United States District Judge

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