Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 99.106.168.11 ( 2022 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 STRIKE 3 HOLDINGS, LLC, Case No. 22-cv-07314-TSH 7 Plaintiff, ORDER GRANTING EX-PARTE 8 v. MOTION FOR LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO 9 JOHN DOE SUBSCRIBER ASSIGNED IP A RULE 26(F) CONFERENCE ADDRESS 99.106.168.11, 10 Re: Dkt. No. 8 Defendant. 11 12 THIS CAUSE came before the Court upon Plaintiff’s Ex-Parte Application for Leave to 13 Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (the “Application”), and the Court 14 being duly advised does: 15 FIND, ORDER AND ADJUDGE: 16 1. Plaintiff has established that “good cause” exists for it to serve a third-party subpoena on 17 AT&T U-verse (hereinafter the “ISP”). See UMG Recording, Inc. v. Doe, 2008 WL 4104214, *4 18 (N.D. Cal. Sep. 3, 2008); Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 6-7 (D.D.C. 2008); 19 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to provide 20 Plaintiff with the true name and address of the Defendant to whom the ISP assigned an IP address 21 as set forth on Exhibit A to the Complaint. Plaintiff shall attach to any such subpoena a copy of 22 this Order; 23 3. Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any service 24 provider that is identified in response to a subpoena as a provider of Internet services to one of the 25 Defendants; 26 4. If the ISP qualifies as a “cable operator” under 47 U.S.C. § 522(5), which defines the 27 term “cable operator” as “any person or group of persons (A) who provides cable service over a 1 system, or (B) who otherwise controls or is responsible for, through any arrangement, the 2 || management and operation of such a cable system,” the ISP shall comply with 47 U.S.C. § 3 551(c)(2)(B), which provides that “[a] cable operator may disclose such [personal identifying] 4 || information if the disclosure is .. . made pursuant to a court order authorizing such disclosure, if 5 || the subscriber is notified of such order by the person to whom the order is directed,” by sending a 6 || copy of this Order to the Defendant; and 7 5. Plaintiff may only use the information disclosed in response to a Rule 45 subpoena 8 served on the ISP for the purpose of protecting and enforcing Plaintiff's nights as set forth in its 9 Complaint. 10 6. The ISP shall serve a copy of the subpoena and a copy of this order on the 11 || subscriber within 30 days of the date of service on the ISP. The ISP may serve the subscribers 12 || using any reasonable means, including written notice sent to the subscriber’s last known address, 5 13 transmitted either by first-class mail or via overnight service. 14 7. Each subscriber and the ISP shall have 30 days from the date of service upon him, her, 3 15 or it to file any motions in this court contesting the subpoena (including a motion to quash or 16 || modify the subpoena). If the 30-day period lapses without the subscriber contesting the subpoena, 3 17 the ISP shall have 10 days to produce to Plaintiff the information responsive to the subpoena with 18 || respect to that subscriber. 19 8. The ISP shall preserve all subpoenaed information pending the ISP’s delivering such 20 || information to Plaintiff or the final resolution of a timely filed motion to quash the subpoena with 21 respect to such information. 22 9. Any name or other personal identifying information of any current or proposed 23 || defendant shall be filed UNDER SEAL in all filings. 24 IT IS SO ORDERED. 25 Dated: December 2, 2022 26 LU \ - lj-~— 7 THOMAS S. HIXSON United States Magistrate Judge 28