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. 23-cv-05488-VKD

9 Plaintiff,

ORDER DENYING DOE

10 v. DEFENDANT'S MOTION TO QUASH

SUBPOENA

11 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 98.45.253.55, Re: Dkt. No. 10 12 Defendant.

13 14 I. BACKGROUND 15 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed this action for copyright infringement 16 against defendant John Doe, identified only by the IP address 98.45.253.55, as Doe’s real name is 17 unknown to Strike 3. Dkt. No. 1. According to the complaint, Strike 3 is the owner of adult- 18 content movies that it distributes through its websites. Id. ¶¶ 2-3. Strike 3 alleges that Doe used 19 the BitTorrent protocol to download and distribute Strike 3’s movies to others in violation of 20 Strike 3’s copyrights in the material. Id. ¶¶ 4, 18-45. Strike 3 further alleges that Doe has 21 infringed Strike 3’s copyrights in 76 movies over an extended period of time. Id. ¶ 4; see also id. 22 Ex. A. 23 Strike 3 subsequently obtained, on an ex parte basis, an order of this Court authorizing 24 service of a subpoena on Comcast Cable (“Comcast”), Doe’s internet service provider (“ISP”), 25 seeking the name and address of the subscriber associated with the IP address. Dkt. No. 9. Doe 26 now moves to quash the subpoena Strike 3 served on Comcast. Strike 3 opposes the motion. The 27 matter was deemed submitted on the papers without oral argument. See Dkt. No. 17; see also 1 Doe’s motion to quash. 2 II. LEGAL STANDARD 3 Rule 45 governs discovery of non-parties by subpoena. The scope of discovery through a 4 Rule 45 subpoena is the same as the scope of discovery permitted under Rule 26(b). Beaver Cnty. 5 Employers Ret. Fund v. Tile Shop Holdings, Inc., No. 3:16-mc-80062-JSC, 2016 WL 3162218, at 6 *2 (N.D. Cal. June 7, 2016) (citing Fed. R. Civ. P. 45 advisory comm.’s note (1970); Fed. R. Civ. 7 P. 34(a)). Rule 26 permits discovery “regarding any nonprivileged matter that is relevant to any 8 party’s claim or defense and proportional to the needs of the case considering the importance of 9 the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant 10 information, the parties’ resources, the importance of the discovery in resolving the issues, and 11 whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. 12 Civ. P. 26(b)(1). The Court must limit the frequency or extent of discovery if it determines that: 13 “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some 14 other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking 15 discovery has had ample opportunity to obtain the information by discovery in the action; or 16 (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 17 26(b)(2)(C). Rule 45 further provides that “the court for the district where compliance is required 18 must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires 19 a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure 20 of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person 21 to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). 22 Generally, “a party has no standing to seek to quash a subpoena issued to someone who is 23 not a party to the action, unless the objecting party claims some personal right or privilege with 24 regard to the documents sought.” Drummond Co., Inc. v. Collingsworth, Nos. 13-mc-80169-JST 25 (JCS)/13-mc-80171-JST (JCS), 2013 WL 6074157, at *15 (N.D. Cal. Nov. 18, 2013) (quoting 9A 26 Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 2459 (3d ed. 2008)). If good cause is 27 shown, a court may “issue an order to protect a party or person from annoyance, embarrassment, 1 Fed. R. Civ. P. 26(c)(1)(A). The moving party bears the burden of persuasion on a motion to 2 quash, but the party issuing the subpoena must demonstrate that the discovery is relevant. See 3 Chevron Corp. v. Donziger, No. 3:12-mc-80237-CRB, 2013 WL 4536808, at *4 (N.D. Cal. Aug. 4 22, 2013) (citation omitted); see also Optimize Tech. Solutions, LLC v. Staples, Inc., No. 5:14-mc- 5 80095-LHK, 2014 WL 1477651, at *2 (N.D. Cal. Apr. 14, 2014). 6 III. DISCUSSION 7 Preliminarily, the Court observes that Doe does not refute Strike 3’s assertions that defense 8 counsel failed to confer at all prior to filing the present motion to quash.1 The Court expects 9 parties to confer with one another in a good faith effort to resolve disputes before filing a motion. 10 This requirement is essential to conserving the limited time and resources of the Court and the 11 parties by obviating the filing of unnecessary motions. See Raifman v. Wachovia Sec., LLC, No. 12 C11-02885 SBA, 2013 WL 949255, at *1 (N.D. Cal., Mar.11, 2013) (“The purpose of the [meet 13 and confer] requirement is to encourage settlement, resolve disputes which need not involve the 14 Court, and avoid unnecessary litigation, thus saving the parties’, the Court’s, and the taxpayers’ 15 limited time, money, and resources.”) (internal quotations and citation omitted). Indeed, Strike 3 16 says that had defense counsel conferred beforehand, Strike 3’s counsel may have been able to 17 resolve some or all of the various issues presented in Doe’s motion to quash. Doe and his counsel 18 are advised that in the future, the Court will not entertain a motion unless counsel have previously 19 conferred for the purpose of attempting to resolve all disputed issues. 20 The Court has nonetheless considered Doe’s arguments in support of his motion to quash 21 and finds them without merit. Doe principally contends that Strike 3’s subpoena violates his right 22 to privacy under the “Cable Privacy Act” and that this lawsuit is a “tactic” meant to “embarrass, 23 harass and annoy” him. See Dkt. No. 10 at ECF 4. However, as Doe acknowledges, in the 24 Court’s order authorizing Strike 3 to subpoena Comcast, the Court specifically prohibited Strike 3 25 from publicly revealing the subscriber’s personal identifying information, absent the subscriber’s 26 consent or leave of the Court. Dkt. No. 9 at 2. Doe’s privacy concerns have therefore already 27 1 been addressed. While Doe notes that he did not have an opportunity to contest Strike 3’s ex parte 2 application for leave to subpoena Comcast, he also acknowledges that an ISP may disclose the 3 requested personally identifying information where the disclosure is made pursuant to a court 4 order and the ISP provides him with notice of the order, which is what has happened here. See 5 Dkt. No. 10 at ECF 2, 3; 47 U.S.C. § 551(c)(2)(B); see also generally Strike 3 Holdings, LLC v. 6 Doe, No. 21-3022-KSM, 2021 WL 3022449, at *3 (E.D. Pa. July 15, 2021) (observing “the 7 unavoidable ex parte nature” of Strike 3’s request for leave to subpoena Doe’s ISP). 8 Doe also argues that the Court should quash the subpoena because Strike 3’s complaint 9 does not sufficiently state a claim for relief, including details regarding how Strike 3 came to own 10 the subject movies, or the titles of the allegedly infringed movies. Dkt. No. 10 at 3. To the extent 11 Doe invokes Cobbler Nevada LLC v. Gonzalez, 901 F.3d 1142 (9th Cir. 2018) for the proposition 12 that Strike 3’s subpoena must be quashed, his arguments are misplaced.2 As stated in the Court’s 13 order authorizing service of Strike 3’s subpoena, once Strike 3 learns Doe’s identity, it cannot rely 14 on a bare allegation that he is the registered subscriber of an IP address associated with infringing 15 activity to state a plausible claim for direct or contributory copyright infringement. See Dkt. No. 9 16 (citing Cobbler Nevada, 901 F.3d at 1144). However, Cobbler Nevada does not bar early 17 discovery by means of a subpoena to an ISP for a subscriber’s identity, which is precisely what 18 Strike 3 seeks here. See Strike 3 Holdings, LLC v. Doe, No. 19-cv-00723 (JCS), 2019 WL 19 2996428, at *3 (N.D. Cal. July 9, 2019) (citing cases); see also Strike 3 Holdings, LLC v. Doe, No. 20 4:19-cv-08231-KAW, 2020 WL 1942471, at *2 (N.D. Cal. Apr. 22, 2020) (“To the extent that 21 Defendant believes that Plaintiff will be unable to prove its case, that argument is premature, as 22 Plaintiff is only trying to ascertain the defendant subscriber’s identity, which was explicitly 23 permitted in Cobbler Nevada.”). 24

25 2 Moreover, Strike 3 points out that it purposely omits the titles of the allegedly infringed movies from its complaint due to the adult nature of its content and to protect Doe’s privacy interests. See 26 Dkt. No. 1 ¶ 43; Dkt. No. 12 at 1, 6. Strike 3 says that had Doe conferred prior to bringing the present motion, Strike 3 could have provided him with the titles of the works listed in Exhibit A 27 appended to the complaint. Nor does Doe refute Strike 3’s assertion that titles of the works at 1 |} IV. CONCLUSION 2 Based on the foregoing, Doe’s motion to quash Strike 3’s subpoena to Comcast is denied. 3 IT IS SO ORDERED. 4 Dated: April 15, 2024 5 6 Virginia K. DeMarchi 7 United States Magistrate Judge 8 9 10 11 q 12

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