Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 107.130.100.9 ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 STRIKE 3 HOLDINGS, LLC, Case No. 23-cv-05494-PHK 9 Plaintiff, ORDER (1) GRANTING STRIKE 3 HOLDINGS, LLC’S EX PARTE 10 v. APPLICATION FOR LEAVE TO SERVE THIRD-PARTY SUBPOENA 11 JOHN DOE SUBSCRIBER ASSIGNED IP AND (2) ISSUING PROTECTIVE ADDRESS 107.130.100.9, ORDER 12 Defendant. Re: Dkt. No. 8 13 14 Now before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Strike 3”) Ex Parte Application 15 for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. [Dkt. 8]. Because 16 Defendant John Doe, subscriber assigned IP address number 107.130.100.9, (“Defendant Doe”) has 17 not been identified or served, no opposition has been filed. Having reviewed Strike 3’s application 18 and all supporting documents, the Court GRANTS the ex parte application. Further, on the Court’s 19 own motion, the Court additionally ISSUES a limited Protective Order for the reasons set forth 20 below. 21 BACKGROUND 22 Strike 3 alleges that it is the assignee of copyrights registered with the U.S. Copyright Office 23 to certain adult motion pictures distributed through various adult websites and DVD sales. See Dkt. 24 1 at 1, 6. Strike 3 indicates it is a Delaware corporation located in Camden, Delaware. Id. at ¶ 12. 25 Defendant Doe was named in the Complaint solely in connection with a specific Internet 26 Protocol (“IP”) address. [Dkt. 1]. “An IP address is a ‘unique numerical address’ assigned to every 27 computer and can serve as its identifying characteristic.” United States v. Henderson, 906 F.3d 1 identifier for every computer or server connected to the Internet. United States v. Forrester, 512 2 F.3d 500, 510 n.5 (9th Cir. 2008). As is well-known, consumers and households connect their home 3 computers and other devices to the Internet by subscribing to such service through a vendor called 4 an internet service provider (“ISP”), often a cable company, telecommunications company, or other 5 similar service provider. Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 6 U.S. 967, 974 (2005) (“The traditional means by which consumers in the United States access the 7 network of interconnected computers that make up the Internet is through “dial-up” connections 8 provided over local telephone facilities. Using these connections, consumers access the Internet by 9 making calls with computer modems through the telephone wires owned by local phone companies. 10 Internet service providers (ISPs), in turn, link those calls to the Internet network, not only by 11 providing a physical connection, but also by offering consumers the ability to translate raw Internet 12 data into information they may both view on their personal computers and transmit to other 13 computers connected to the Internet.”) (citations omitted). 14 When a subscriber (or consumer) signs up for Internet service, the ISP assigns an IP address 15 to that subscriber – essentially renting out the IP address to the consumer for the duration of their 16 subscription service period. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 575 (N.D. Cal. 17 1999) (“On the Internet, computers find each other by reference to Internet Protocol (IP) addresses, 18 which are a series of numbers that are used to specify the address of a particular machine connected 19 to the Internet. Domain names are alphanumeric strings that are associated with particular IP 20 addresses. Thus to find the computer at 129.99.135.66, a user might type in uscourts.gov, and would 21 never need to know the actual IP address.”). The consumer does not own the IP address – it is 22 controlled by the ISP and allocated to subscribers when they sign up for service. UMG Recordings, 23 Inc. v. Doe, No. 08-cv-1193-SBA, 2008 WL 4104214, at *2 (N.D. Cal. Sept. 3, 2008) (“[W]hen an 24 ISP is given a defendant’s IP address and the date and time of infringement, it quickly and easily 25 can identify the name and address of a Doe defendant, i.e., the ISP’s subscriber, because that 26 information is contained in the ISP’s subscriber activity log files.”) (citation omitted). Because the 27 ISP sends monthly or regular bills to the subscriber and has the original service application 1 to which customers, it follows that an ISP’s internal records should typically include information 2 sufficient to link a customer with the account corresponding to a particular IP address. Id. 3 Here, Strike 3 avers that it traced the IP address used by Defendant Doe’s device to a physical 4 address in the Northern District of California using a geolocation tool developed by a vendor called 5 Maxmind, Inc. (“Maxmind”). [Dkt. 1 at ¶ 9; Dkt. 8 at 17]. Using Maxmind, Strike 3 avers that it 6 identified Defendant Doe in this case as a subscriber using assigned IP address 107.130.100.9. See 7 Dkt. 1 at ¶ 9; Dkt. 8 at 17. Further, Strike 3 alleges, from information obtained by Maxmind, that 8 AT&T Internet (“AT&T”) is the ISP for and owner of the IP address which was allocated to 9 Defendant Doe as part of their subscription for internet service from AT&T. [Dkt. 8 at 9]. 10 Defendant Doe is accused of using an internet-connected device and a peer-to-peer file 11 distribution network called BitTorrent to download and distribute, through the internet, copies of 12 Strike 3’s copyrighted motion pictures without license or authorization. See Dkt. 1 at ¶¶ 18–44. 13 BitTorrent is a software-implemented protocol for sharing electronic files (such as digitized files of 14 motion pictures, television shows, and other content) directly between individuals’ internet- 15 connected devices. UMG Recordings, 2008 WL 4104214 at *1 (“The Internet and peer-to-peer 16 (P2P) networks have spawned an illegal trade in copyrighted works. By downloading P2P software, 17 and logging onto a P2P network, an individual may upload (distribute) or download (copy), without 18 authorization, countless copyrighted music and video files to or from any other P2P network user 19 worldwide. [. . .] [S]imilar online media distribution systems emerged that have attempted to 20 capitalize on the growing illegal market that Napster fostered. These include Ares, KaZaA, 21 eDonkey, BitTorrent, DirectConnect, and Gnutella, among others.”) (citations and footnote 22 omitted). Strike 3 alleges that Defendant Doe used BitTorrent for “downloading Strike 3’s motion 23 pictures as well as distributing them to others[]” and “has been recorded infringing 24 movies over 24 an extended period of time.” See Dkt. 1 at ¶ 4. 25 As a further part of its investigation, Strike 3 alleges it is the owner and operator of an 26 investigative technology tool called “VXN Scan.” Id. at ¶ 28. Using VXN Scan, Strike 3 allegedly 27 established direct communication connections over the internet (using a “TCP/IP” (or Transmission 1 Defendant Doe’s device (which was connected to the internet at the IP address named in the 2 Complaint) during a time period when Defendant Doe’s device was connected to the internet and 3 was using BitTorrent. Id. at ¶ 30. According to the Complaint, VXN Scan searches for and obtains 4 “.torrent” files from the target device and then downloads complete copies of the digital media files 5 that correlate to those “.torrent” files to determine whether those downloaded files are infringing 6 copies of one of Strike 3’s copyrighted works. Id. at ¶¶ 25–33. Strike 3 further alleges that VXN 7 Scan used metadata called the “Info Hash” value from a .torrent file downloaded from Defendant 8 Doe’s device to download a portion of the same digital media file directly from Defendant Doe’s 9 device via the BitTorrent network (thus essentially emulating the distribution of digital files of 10 motion pictures from Defendant Doe to another BitTorrent user via the internet). Id. at ¶ 36. A 11 comparison of the digital media files apparently revealed that Defendant Doe downloaded and 12 distributed copies of portions of Strike 3’s copyrighted works without authorization. Id. at ¶¶ 35– 13 44. 14 Based on these foregoing allegations, on October 25, 2023, Strike 3 filed its Complaint 15 against Defendant Doe alleging copyright infringement under the Copyright Act. See Dkt. 1. On 16 November 9, 2023, Strike 3 filed the instant ex parte application requesting leave to serve AT&T 17 with a subpoena under Fed. R. Civ. P. 45. [Dkt. 8]. Strike 3 alleges that AT&T has the ability to 18 identify Defendant Doe through the IP address discovered by the investigation discussed herein, 19 because Maxmind’s geolocation service has identified AT&T as the owner of the IP address named 20 in the Complaint. Id. at 17. Strike 3 represents that the requested subpoena will be limited to seeking 21 from AT&T the name and physical address of the individual(s) having the account associated with 22 Defendant Doe’s IP address of 107.130.100.9. Id. 23 DISCUSSION 24 I. LEAVE TO SERVE AN EARLY, LIMITED SUBPOENA ON AT&T. 25 Pursuant to Rule 26(d)(1), a party may not seek discovery from any source prior to the 26 parties’ conference required by Rule 26(f). However, per Rule 26(d)(1), the Court has authority to 27 allow discovery prior to the Rule 26(f) conference and thus outside this timing limitation. See also 1 . by local rule, order, or stipulation. This will be appropriate in some cases[.]”). 2 The Court may authorize early discovery before the Rule 26(f) conference if the requesting 3 party establishes “good cause” for the early discovery. Semitool, Inc. v. Tokyo Electron Am. Inc., 4 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited 5 discovery, in consideration of the administration of justice, outweighs prejudice to the responding 6 party.” Id. 7 As with all discovery matters, “Rule 26 vests the trial judge with broad discretion to tailor 8 discovery narrowly and to dictate the sequence of discovery.” Crawford-El v. Britton, 523 U.S. 9 574, 598 (1998). “And the court may also set the timing and sequence of discovery.” Id. at 599 10 (citing Fed. R. Civ. P. 26(d)). Thus, the decision whether or not to grant early discovery under Rule 11 26(d) is within the Court’s discretion. Quinn v. Anvil Corp., 620 F.3d 1005, 1015 (9th Cir. 2010) 12 (“We review district court rulings on discovery matters for abuse of discretion.”). Further, a 13 decision to deny early discovery under Rule 26(d) “will not be disturbed except upon the clearest 14 showing that denial of discovery results in actual and substantial prejudice to the complaining 15 litigant.” Med Vets, Inc. v. VIP Petcare Holdings, Inc., 811 F. App’x 422, 424 (9th Cir. 2020) 16 (quoting Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). In evaluating a motion for expedited 17 discovery, the District Court in Med Vets considered the following factors to determine whether 18 good cause exists to justify the requested early discovery: (1) whether a preliminary injunction is 19 pending; (2) the breadth of the discovery request; (3) the purpose for requesting the expedited 20 discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance 21 of the typical discovery process the request was made. Med Vets, Inc. v. VIP Petcare Holdings, 22 Inc., No. 18-CV-02054-MMC, [Dkt. 45] at *3 (N.D. Cal. Nov. 28, 2018) (quoting Rovio Ent. Ltd. 23 v. Royal Plush Toys, Inc., 907 F. Supp. 1086, 1099 (N.D. Cal. 2012)). The Ninth Circuit affirmed 24 the District Court’s decision on the request for expedited discovery. Med Vets, 811 F. App’x at 424. 25 A request for early discovery, such as the instant ex parte application, may arise particularly 26 in a case involving alleged wrongful conduct in connection with use of the internet. As discussed 27 by precedent: such as defamation, copyright infringement, and trademark infringement, entirely 1 on-line. The tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying information. Parties who have been injured by 2 these acts are likely to find themselves chasing the tortfeasor from Internet Service Provider (ISP) to ISP, with little or no hope of actually discovering the identity of 3 the tortfeasor. 4 In such cases the traditional reluctance for permitting filings against John Doe defendants or fictitious names and the traditional enforcement of strict compliance 5 with service requirements should be tempered by the need to provide injured parties with an (sic) forum in which they may seek redress for grievances. However, this 6 need must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously. People are permitted to interact 7 pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the 8 other party knowing all the facts about one’s identity can foster open communication and robust debate. Furthermore, it permits persons to obtain 9 information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate 10 online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their 11 identity. 12 Thus some limiting principals should apply to the determination of whether discovery to uncover the identity of a defendant is warranted. 13 14 Columbia Ins., 185 F.R.D. at 578 (footnote omitted). 15 Columbia thus identified four factors to assist in determining whether a plaintiff has 16 established good cause to conduct early discovery to identify Doe Defendants. Courts look to 17 “whether the plaintiff (1) identifies the Doe defendant with sufficient specificity that the court can 18 determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps 19 taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion 20 to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will 21 permit service of process.” Zoosk Inc. v. Doe, No. 4:10-CV-04545, 2010 WL 5115670, at *2 (N.D. 22 Cal. Dec. 9, 2010) (citing Columbia, 185 F.R.D. at 578–80). Additionally, the Ninth Circuit has 23 relied on the first and third factors as weighing in favor of granting early discovery to determine an 24 unknown defendant’s identity. See, e.g., Young v. Transp. Deputy Sheriff I, 340 F. App’x 368, 369 25 (9th Cir. 2009); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 26 177 F.3d 1160, 1163 (9th Cir. 1999). 27 Applying the Columbia factors here, the Court find that all four factors weigh in favor of the 1 Court to establish Defendant Doe is more than likely an actual individual who can be legally sued 2 in federal court. Strike 3 alleges Defendant Doe downloaded Strike 3’s copyrighted adult motion 3 pictures and distributed them via the BitTorrent network. [Dkt. 1 at ¶¶ 7–8]. Strike 3 alleges that 4 one way for Defendant Doe to obtain the digital film files was to specifically direct their BitTorrent 5 client to download the copyrighted media files from a source on the internet. [Dkt. 8 at 13]. The 6 Court notes that Strike 3’s pleadings do not eliminate entirely the possibility that Defendant Doe 7 obtained the files without using the internet, such as through some form of direct file transfer from 8 a locally connected device, through a transfer from a portable memory device such as a USB drive, 9 or through some form of copying from a DVD. Nevertheless, the Court acknowledges that one 10 reasonably plausible means by which Defendant Doe obtained the digitized film files at issue was 11 through download over the internet. 12 With regard to distributing the digital film files, Strike 3 avers that Defendant Doe had to 13 specifically set up their BitTorrent client to allow other BitTorrent users to obtain copies of the 14 copyrighted media files from the peer-to-peer network connected via the internet to Defendant Doe’s 15 computer (or other electronic device). See Dkt. 1 at 1, 6. These allegations strongly suggest 16 Defendant Doe is an identifiable person, a subscriber of the IP address identified by Strike 3, and 17 thus a natural person who can be legally sued in federal court. Strike 3 Holdings, LLC v. Doe, No. 18 17-CV-07051-LB, 2018 WL 357287, at *2 (N.D. Cal. Jan. 10, 2018). Strike 3 alleges it traced each 19 download back to Defendant Doe’s IP address geolocated in the Northern District of California, 20 thereby establishing a high likelihood that this Court has jurisdiction over Defendant Doe. [Dkt. 1 21 at ¶¶ 7–8]. 22 Second, Strike 3 provides a detailed account of steps taken in its attempts to locate and 23 identify Defendant Doe. Strike 3 alleges Defendant Doe downloaded and distributed Strike 3’s 24 adult motion pictures using the IP address identified herein, and this IP address was allegedly traced 25 back to the Northern District of California. Id. Strike 3 allegedly used multiple methods available 26 to them to attempt to obtain Defendant Doe’s identity, including web searches, reviews of numerous 27 sources of authority, and discussions with investigators and cyber security consultants. [Dkt. 8 at 1 Defendant Doe’s identity. Id. Strike 3’s expert corroborates the inability to obtain Defendant Doe’s 2 identity solely from the IP address. [Dkt. 8-1 at 22 (Declaration of Patrick Paige: “Based on [his] 3 experience in similar cases, Defendant’s ISP AT&T Internet is the only entity that can correlate the 4 IP address to its subscriber and identify [the] Defendant.”)]. The Court finds that Strike 3’s efforts 5 are sufficient to satisfy this factor. See Strike 3 Holdings LLC v. Doe, No. 18-CV-06938-WHO, 6 2019 WL 402358, at *2 (N.D. Cal. Jan. 31, 2019) (finding plaintiff’s efforts sufficient, including 7 web searches of the IP addresses, references to other sources of authority, and a declaration from an 8 IT expert stating that the service provider was the only entity with the ability to identify the 9 defendant). 10 Third, Strike 3’s Complaint could withstand a motion to dismiss because the Court concludes 11 that Strike 3 sufficiently pleads copyright infringement under the Copyright Act. “To establish a 12 prima facie case of direct copyright infringement, [a party] must show that he owns the copyright, 13 and that [the alleged infringer] violated one of the exclusive rights set forth in 17 U.S.C. § 106.” 14 Bell v. Wilmott Storage Servs., LLC, 12 F.4th 1065, 1071 (9th Cir. 2021). “In addition, direct 15 infringement requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 16 defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017) (citing Fox Broad. 17 Co. v. Dish Network L.L.C., 747 F.3d 1060, 1067 (9th Cir. 2013)). Section 106 of the Copyright 18 Act grants copyright owners six exclusive rights: reproduction, preparation of derivative works, 19 distribution, public performance, public display, and digital audio transmission of the copyrighted 20 work. Fahmy v. Jay-Z, 908 F.3d 383, 393–94 (9th Cir. 2018). 21 Here, Strike 3 claims ownership of the copyrights for the adult movies that Defendant Doe 22 allegedly downloaded and subsequently distributed to others, all without obtaining authorization or 23 license from Strike 3. [Dkt. 1 at ¶ 46]. Strike 3 alleges that “by downloading the torrent files, 24 Defendant [Doe] triggered a cascade of technical operations, making Defendant [Doe] the 25 ‘proximate cause’ of all of the violations of Plaintiff’s copyrights.” [Dkt. 8 at 14]. Without passing 26 on the ultimate merits of this case, the Court finds that at this stage Strike 3’s Complaint could 27 withstand a motion to dismiss because it has established a prima facie case of copyright 1 Finally, Strike 3 has established that the requested, limited early discovery is likely to lead 2 to identifying information which will likely reveal the identity of Defendant Doe. In order to 3 establish this factor, a Plaintiff must “provide enough concrete details about who these individuals 4 are or how they eventually could be identified, located, and served.” Biesenbach v. Does 1–3, No. 5 21-CV-08091-DMR, 2022 WL 17371156, at *4 (N.D. Cal. July 18, 2022). Strike 3 alleges that, as 6 the ISP for Defendant Doe, AT&T has information which would identify Defendant Doe. [Dkt. 1 7 at ¶ 5]. AT&T allegedly has in its possession the subscriber’s name and physical address, since 8 some natural person signed up for and is paying AT&T for the internet service associated with the 9 IP address at issue here. [Dkt. 8-1 at 22 (Declaration of Patrick Paige: “Based on [his] experience 10 in similar cases, Defendant’s ISP AT&T Internet is the only entity that can correlate the IP address 11 to its subscriber and identify [the] Defendant.”)]. Strike 3 claims AT&T is in a position to provide 12 this limited information in response to the requested early subpoena, and Strike 3 argues that, after 13 receipt of such, it will be able to identify Defendant Doe and ultimately serve process. [Dkt. 8 at 14 9]. “Even if the subscriber is not the proper defendant, learning his or her identity may allow Strike 15 3 to work with the subscriber to locate that individual.” Strike 3 Holdings, 2019 WL 402358, at *3. 16 Accordingly, the Court finds that Strike 3 has made a sufficient showing to satisfy this factor. 17 Further, applying the good cause factors identified by the District Court in Med Vets leads 18 to the same result. Med Vets, No. 18-CV-02054-MMC, [Dkt. 45] at *3, aff’d Med Vets, 811 F. 19 App’x at 424. First, while a preliminary injunction is not pending, here the requested early discovery 20 is needed to allow the case to proceed against an unidentified defendant. Second, Strike 3 represents 21 to the Court that the breadth of the proposed discovery request is limited and narrow: the proposed 22 subpoena will only seek from AT&T the name and physical address of the natural person who is the 23 subscriber for the IP address at issue. Third, the purpose for requesting the expedited discovery is 24 discussed above: Strike 3 alleges it needs the discovery in order to be able to identify the person 25 who is Defendant Doe and thus to allow this case to go forward. Fourth, the burden on the target of 26 the discovery to comply with the requests appears cabined by Strike 3’s commitment to seek only 27 limited discovery from AT&T and not free-ranging discovery to try to identify Defendant Doe. 1 discovery process, but this is by necessity since Strike 3 alleges it needs to identify Defendant Doe 2 in order to pursue the case beyond this filing stage. In sum, in light of the District Court Med Vets 3 factors, the Court finds that Strike 3 has demonstrated good cause warranting the requested, early 4 and limited discovery. 5 In light of the facts and evidence presented to the Court and applying these facts to the legal 6 standards for early discovery, the Court finds that Strike 3 has demonstrated good cause warranting 7 the requested early, limited discovery (specifically, the proposed subpoena to AT&T) to determine 8 the identity of Defendant Doe. Here, in consideration of the administration of justice, the need for 9 the requested discovery (to identify the defendant and allow the case to go forward) outweighs the 10 prejudice to AT&T (the target of the requested discovery) in light of the limited and narrow nature 11 of the requested subpoena. Semitool, 208 F.R.D. at 276. Indeed, here the copyright infringement 12 claims are supported by evidence of technical investigation resulting in multiple alleged instances 13 of copyright infringement linked to the one, identified IP address. Cf. id. (“It should be noted that 14 courts have recognized that good cause is frequently found in cases involving claims of infringement 15 and unfair competition.”). Therefore, the Court GRANTS leave to serve the limited, proposed third- 16 party subpoena on AT&T prior to the Rule 26(f) conference in this matter. 17 II. PROTECTIVE ORDER 18 Courts have discretion to issue a protective order sua sponte for “good cause” in order to 19 “protect a party or person from annoyance, embarrassment, oppression, or undue burden or 20 expense[.]” Fed. R. Civ. P. 26(c). To establish “good cause,” there must be a demonstration of 21 specific prejudice or harm that would result from the absence of a protective order. Phillips ex rel. 22 Ests. of Byrd v. General Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). “[B]road 23 allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy 24 the Rule 26(c) test [for good cause].” Beckman Indus. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 25 1992). With regard to a specific type of harm implicated here, the Ninth Circuit acknowledges that 26 people use pseudonyms in their internet communications “when anonymity is necessary ‘to preserve 27 privacy in a matter of sensitive and highly personal nature[.]’” Does I thru XXIII v. Advanced Textile 1 presumption that parties’ identities are public information and the risk of unfairness to the opposing 2 party”). 3 Here, good cause exists to protect the privacy and rights of the person who will presumably 4 be identified by AT&T (whether that person is Defendant Doe or a third party who pays for the 5 internet service from AT&T for the subject IP address). In this situation, anonymity is necessary to 6 preserve privacy and protect the person to be identified by AT&T from annoyance and 7 embarrassment because of the sensitive and highly personal nature of adult motion pictures. See 8 Strike 3 Holdings, LLC, 2018 WL 357287, at *3 (recognizing that “[a]n allegation that individually 9 illegally downloaded adult motion pictures likely goes to matters of a sensitive and highly personal 10 nature, including one’s sexuality”). Further, because AT&T’s information produced in response to 11 the requested subpoena may not lead to the proper subscriber, it is necessary to protect the identity 12 of any potential and innocent third parties, as well as protect them from annoyance, embarrassment, 13 or unfairness from deprivation of privacy. Strike 3 Holdings, LLC v. Doe, No. 23-CV-01985-AMO, 14 2023 WL 3483288, at *2 (N.D. Cal. May 15, 2023). 15 Considering the subscriber’s potential status as an innocent third party and the sensitive and 16 personal nature of the subject matter of the suit for both the subscriber and Defendant Doe, the Court 17 accordingly issues a limited protective order. Any information produced in response to the 18 requested subpoena to Strike 3 by AT&T will be treated as confidential and shall be treated 19 following the restrictions in and as if it were designated “Confidential” under the Northern District 20 of California’s Model Protective Order for Standard Litigation. See 21 https://www.cand.uscourts.gov/forms/model-protective-orders/. This presumptive confidential 22 treatment of any such material or information produced in response to the requested subpoena shall 23 continue until Defendant Doe (or any other third party identified by AT&T in response to the 24 subpoena) has the opportunity to file a motion with the Court to proceed in the litigation 25 anonymously and pursuant to a Stipulated Protective Order, and the Court has had a chance to rule 26 on that motion. Additionally, a protective order of this nature would comport with Strike 3’s 27 admitted policy of respecting privacy in these matters, and Strike 3 indicates that it does not oppose 1 21]. 2 Accordingly in light of the showing of good cause, and in order to preserve the privacy of 3 (and protect from annoyance and embarrassment to) Defendant Doe and any other third parties 4 whose information may be produced by AT&T, and further in light of Strike 3’s non-opposition, 5 the Court ISSUES a protective order to the limited extent that any information produced by AT&T 6 in response to the requested subpoena will be treated as confidential by all parties in this matter, 7 following the restrictions for “Confidential” designated material under the Court’s Model Protective 8 Order for Standard Litigation. That confidential treatment shall continue until the Court rules upon 9 any motion filed by Defendant Doe (or any other impacted third party) to continue confidential 10 treatment of that information and, in the case of Defendant Doe, to be allowed to proceed in this 11 litigation anonymously. See Strike 3 Holdings, 2018 WL 357287, at *3 (citing IO Grp., Inc. v. Does 12 1–19, No. C 10-03851 SI, 2010 WL 5071605, at *2 (N.D. Cal. Dec. 7, 2010)). If Defendant Doe or 13 any other third party fails to file a motion for leave to proceed anonymously within thirty days after 14 receiving notice from Strike 3 that AT&T has produced their information, Strike 3 may file a motion 15 seeking withdrawal or modification of the limited protective order. Cf. Strike 3 Holdings, 2018 WL 16 357287 at *3 (citing IO Grp., 2010 WL 5071605, at *3). The Court further ORDERS that any 17 such notice from Strike 3 to Defendant Doe or any other third party shall include or attach a copy 18 of this Order. 19 Considering the potential social ramifications of a public accusation associated with 20 illegally obtaining adult films, if Defendant Doe or any subscriber identified by AT&T “includes 21 identifying information within his or her request to proceed anonymously, the Court finds good 22 cause to order the papers filed under seal until it has opportunity to rule on the request.” Strike 3 23 Holdings, 2018 WL 357287, at *4 (citing IO Grp., 2010 WL 5071605, at *3). In this situation, “the 24 [C]ourt will direct the Doe [D]efendant [or other movant] to submit a copy of the under-seal request 25 to Strike 3 [Holdings] and will ensure that Strike 3 has time to respond.” Strike 3 Holdings, 2018 26 WL 357287, at *4. 27 // 1 CONCLUSION 2 Pursuant to the discussion herein, the Court GRANTS Strike 3’s ex parte application for 3 leave to serve a limited, early third-party subpoena to AT&T seeking only the specific information 4 described herein. Further, the Court ISSUES a limited Protective Order as discussed herein 5 || pursuant to Fed. R. Civ. P. 26(c). 6 7 IT IS SO ORDERED. 8 Dated: December 27, 2023 Ces 10 ’ PETER H. KANG United States Magistrate Judge as 12 13 «14 15 16 Oo Z 18 19 20 21 22 23 24 25 26 27 28