1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 22cv1626-RSH-MDD 12 Plaintiff, ORDER DENYING RENEWED EX 13 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD- 14 JOHN DOE, subscriber assigned IP PARTY SUBPOENA PRIOR TO A address 76.167.66.81, 15 RULE 26(f) CONFERENCE Defendant. 16 [ECF No. 6] 17 18 Before the Court is Strike 3 Holdings, LLC’s (“Plaintiff”) Renewed Ex 19 Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 20 26(f) Conference filed on December 2, 2022. (ECF No. 6). For the reasons 21 discussed below, Plaintiff’s motion is DENIED. 22 On October 10, 2022, Plaintiff filed a Complaint against “John Doe,” 23 allegedly a subscriber of “Spectrum” assigned IP address 76.167.66.81 24 (“Defendant”). (ECF No. 1). Plaintiff alleges that Defendant infringed 25 Plaintiff’s copyrights in certain works by using the BitTorrent file 26 distribution network to copy and distribute those works through the Internet 1 Plaintiff seeks leave to conduct early discovery to learn the identity of 2 the subscriber of the subject Internet Protocol (“IP”) address from the 3 Internet Service Provider (“ISP”) who leased the IP address to its subscriber 4 during the relevant period. Specifically, Plaintiff seeks an order permitting it 5 to serve a third-party subpoena on Spectrum requiring the ISP to supply the 6 name and address of its subscriber to Plaintiff. 7 A plaintiff seeking such an order must, among other things, “file a 8 request for discovery with the Court . . . identif[ying] a limited number of 9 persons or entities on whom discovery process might be served and for which 10 there is a reasonable likelihood that the discovery process will lead to 11 identifying information about defendant that would make service of process 12 possible.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. at 578 (N.D. Cal. 13 1999) (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 14 n.24 (9th Cir. 1977)). The plaintiff must make the “reasonable likelihood” 15 showing with competent evidence. See AF Holdings LLC v. Doe, 12CV1523- 16 AJB KSC, 2012 WL 4339072, at *3 (S.D. Cal. Sept. 20, 2012) (requiring 17 evidence tying IP address to subpoena target). 18 Plaintiff moved once before for an ex parte application for leave to serve 19 a third-party subpoena on “Spectrum.” The Court denied that motion because 20 it failed to identify “Spectrum” with specificity. The Court would not order 21 that “Spectrum” be required to respond to discovery without further 22 specificity. Such an order would either be impermissibly broad, allowing 23 Plaintiff to take discovery from any entity called “Spectrum,” see Columbia 24 Ins. Co., 185 F.R.D. at 580 (plaintiff must “identif[y] a limited number” of 25 potential subpoena recipients), or too vague to support enforcement of the 26 ensuing subpoena against any specific “Spectrum” entity. See id. at 577 1 defendant with process). 2 The renewed motion fails to correct the issue. The only difference the 3 Court can discern between Plaintiff’s renewed motion and the previously 4 denied motion is addition of the following footnote: 5 Spectrum (https://www.spectrum.net/) “is a trade name of Charter Communications, used to market consumer and commercial cable 6 television, internet, telephone, and wireless services provided by 7 the Company.” See https://en.wikipedia.org/wiki/Spectrum_ (TV_service). Spectrum is owned by Charter Communications, Inc. 8 See, e.g., Hart v. Charter Commc’ns, Inc., 814 F. App'x 211, 213 (9th 9 Cir. 2020) (regarding “Spectrum Management Holding Co., LLC (‘Spectrum’) and Spectrum’s parent company, Charter 10 Communications, Inc. (‘Charter’)”). Strike 3 refers to the ISP as 11 “Spectrum” in its papers since that is the name that Maxmind uses to identify the entity, see Exhibit 1 to Decl. of Emilie Kennedy, but 12 Strike 3’s subpoenas are addressed to Spectrum and its parent 13 company, Charter. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 18- 2496 (TJH)(SPx), 2019 WL 12446430, at *1 (C.D. Cal. Mar. 29, 14 2019) (denying motion to quash that was addressed “to Charter 15 (Spectrum), defendant's Internet Service Provider”). Additionally, at the ISP’s instruction, subpoenas addressed to Spectrum are 16 served via Spectrum’s online portal, where Spectrum has provided 17 Strike 3 with an account to directly upload the subpoena to Spectrum’s legal department. Spectrum has never rejected a 18 subpoena or court order that has referred to it as “Spectrum,” and 19 the ISP routinely complies with early discovery orders. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 19-2552 (LAK)(OTW), 2019 WL 20 4855039, at *3 (S.D.N.Y. Oct. 2, 2019) (denying motion to quash 21 after Spectrum informed subscriber of the pending subpoena). 22 (ECF No. 6 at 2 n.1). 23 Plaintiff still does not identify any specific entity amendable to service 24 of a subpoena. To meet the evidentiary burden, Plaintiff must file an affidavit 25 or other evidence that ties the IP address to a specific identifiable entity that 26 Plaintiff can serve and, if necessary, sue to enforce the subpoena. AF 1 ||evidence tying IP address to subpoena target). Plaintiff mentions “Charter 9 Communications” in the briefing, citing Wikipedia for the purported fact that 3 ||“Spectrum” is a trade name of that entity. Wikipedia is not evidence. See, 4 |\e.g., Hasbro, Inc. v. Sweetpea Enter., Inc., CV 13-3406-DMG (JCGx), 2014 5 Dist. LEXIS 199557, 2014 WL 12580250, at *3 (C.D. Cal. Feb. 25, 2014) 6 || (anonymously-authored Wikipedia page is unreliable). Plaintiff next cites 7 Ninth Circuit precedent regarding a relationship between “Spectrum 8 || Management Holding Co., LLC” and Charter Communications but: 1) 9 || precedent is not evidence; 2) Plaintiff makes no argument that Defendant can 10 should be bound by factual findings in that case; and 3) Plaintiff makes no 11 |}mention of “Spectrum Management Holding Co., LLC” in relation to 12 || Defendant. 13 No facts in evidence indicate that “Spectrum” is owned by “Charter 14 || Communications,” or that Defendant has any connection to any particular 15 entity called “Spectrum.” The Court cannot sanction issuance of a subpoena 16 |}on either entity. 17 Plaintiff's motion is DENIED. 18 Dated: December 15, 2022 Mitel bs. [ Hon. Mitchell D. Dembin 21 United States Magistrate Judge 22 23 24 25 26 27