Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 174.87.193.119 ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, No. 2:20-cv-01989-TLN-CKD 12 Plaintiff, 13 v. ORDER DENYING MOTION TO QUASH 14 JOHN DOE subscriber assigned IP address 174.87.193.119 15 Defendant. 16 17 On February 8, 2021, defendant John Doe filed a motion to quash a subpoena issued by 18 plaintiff Strike 3 Holdings, LLC, to defendant’s internet service provider (“ISP”), Spectrum, 19 seeking his1 subscriber information. Upon review of defendant’s motion to quash and plaintiff’s 20 response, the court finds this motion can be resolved without oral argument pursuant to Civil 21 Local Rule 7-1(b). The court denies defendant’s motion to quash the subpoena. Plaintiff is 22 ordered to serve a copy of this order on the ISP. 23 I. RELEVANT BACKGROUND 24 This case is one of many filed by Plaintiff Strike 3 Holdings, LLC, alleging copyright 25 infringement of adult-content movies distributed through its websites. ECF No. 1, ¶¶ 1-3. Plaintiff 26 alleges defendant has, over a period of time, used the BitTorrent protocol to download and 27 1 Defendant’s gender is not known. Pronouns refer to the “John Doe” party designation by 28 plaintiff. 1 distribute 107 of plaintiff’s movies to others in violation of plaintiff’s copyrights. ECF No. 1, ¶ 4. 2 Defendant is known to plaintiff only by his IP address, which is maintained by Spectrum. ECF 3 No. 1, ¶ 5. 4 In order to acquire the true name and address of defendant, plaintiff brought an ex parte 5 application to serve a third-party subpoena on defendant’s ISP. ECF No. 5. The undersigned 6 determined that good cause existed for the application and granted the application on December 7 16, 2020. ECF No. 7. Special procedural safeguards were set to protect defendant’s identity and 8 expectation of privacy. Plaintiff was directed to serve a copy of the order on defendant to inform 9 him of the opportunity to file a motion to quash the subpoena. The order directed that “until 10 permission is given by the court, [plaintiff] is not to reveal the identity of the defendant in or out 11 of court.” ECF No. 7. 12 On or about December 17, 2020, plaintiff served the subpoena on the ISP, which has not 13 yet responded. ECF No. 10. On February 8, 2021, defendant moved to quash the subpoena. ECF 14 No. 12. Plaintiff filed a response in opposition. ECF No. 13. 15 II. LEGAL STANDARD 16 “Under Federal Rule of Civil Procedure 45, any party may serve a subpoena that 17 commands a non-party ‘to produce documents, electronically stored information, or tangible 18 things….’” Soto v. Castlerock Farming & Transp., Inc., 282 F.R.D. 492, 504 (E.D. Cal. 19 2012) (citing Fed. R. Civ. P. 45(a)(1)(C)). 20 When a party timely files a motion to quash, a district court must “quash or modify a 21 subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply 22 beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or 23 other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue 24 burden.” Fed. R. Civ. P. 45(d)(3)(A). Additionally, a district court “may… quash or modify the 25 subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or 26 commercial information; or (ii) disclosing an unretained expert’s opinion or information that does 27 not describe specific occurrences in dispute and results from the expert’s study that was not 28 requested by a party.” Fed. R. Civ. P. 45(d)(3)(B). 1 The party issuing the subpoena must demonstrate that the discovery is relevant, while the 2 party seeking to quash the subpoena has the burden of persuasion. Soto, 282 F.R.D. at 502. 3 III. DISCUSSION 4 Defendant moves to quash the subpoena on the basis that his wireless network is not 5 password protected and the house is surrounded by vacation rentals. ECF No. 12. Defendant 6 states there are currently five vacation rentals within 100 feet of the house and it is highly 7 possible someone from one of these vacation rentals downloaded copyright protected material. 8 ECF No. 12. Defendant asks the court to quash the subpoena, asserting the response to the 9 subpoena will not identify the unknown infringer. Id. 10 In sum, defendant claims innocence. While this defense may prove to be true, courts in 11 this and other circuits have consistently rejected the argument that a defendant’s status as a 12 registered subscriber of an IP address associated with infringing activity is insufficient to support 13 discovery of the subscriber’s identity where others could have used the IP address. E.g., Strike 3 14 Holdings, LLC v. Doe, No. 19cv2425-JAH (LL), 2020 U.S. Dist. LEXIS 84577, at *9 (S.D. Cal. 15 May 3, 2020) (“although an IP address and a subscriber’s name alone may be insufficient to state 16 a claim of infringement, …subpoenas may [ ] be used to determine a subscriber’s name”); Strike 17 3 Holdings, LLC v. Doe, No. 4:18-cv-04993-KAW, 2019 U.S. Dist. LEXIS 19497, at *6 (N.D. 18 Cal. Feb. 6 2019); Strike 3 Holdings, LLC v. Doe, No. 2:18-cv-02637 MCE CKD, 2019 U.S. 19 Dist. LEXIS 30674, at ** 9 & 11 (E.D. Cal. Feb. 26, 2019) (citing collected cases). 20 At this point in the litigation, plaintiff has made an adequate showing of the need to 21 subpoena defendant’s ISP to determine whether it can obtain the identity of the proper defendant. 22 Defendant cites no authority for preventing the discovery. To the extent defendant alleges factual 23 innocence, such a consideration is premature and may be raised in a motion to dismiss. The 24 subscriber’s identity will remain protected, both in and out of court, until the court orders 25 otherwise. ECF No. 7. 26 ///// 27 ///// 28 ///// 1 For the foregoing reasons, IT IS HEREBY ORDERED that defendant’s motion to quash 2 | the subpoena (ECF No. 12) is DENIED. 3 | Dated: March 8, 2021 fr pf i, / 1 CAN fu fl. ay CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 || 8.Strike3.1989.quash 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28