Unreported / Non-Citable
Background
Plaintiff Strike 3 Holdings, LLC filed this copyright infringement action on September 25, 2026, alleging that the defendant anonymously downloaded and distributed its adult films using the BitTorrent protocol.
Because Plaintiff could only identify the defendant by an IP address (67.188.244.79), it filed an ex parte application (ECF No. 3) seeking leave to serve a third-party subpoena on the defendant's internet service provider (ISP) prior to a Rule 26(f) conference to obtain the subscriber's true name and address.
Plaintiff argued that without such expedited discovery, it would be unable to serve the complaint and vindicate its copyright.
The court evaluated the request under the Ninth Circuit's "good cause" standard for early discovery and the five-factor test from the Second Circuit's decision in Arista Records, LLC v.
Doe 3, 604 F.3d 110 (2d Cir. 2010), to balance the plaintiff's need for discovery against the putative defendant's privacy interests.
The Court’s Holding
The court granted Plaintiff's ex parte application for expedited discovery on specific terms.
It found that the first four Arista factors weighed in Plaintiff's favor: Plaintiff stated a prima facie claim with download logs; the discovery request was specific (seeking only name and address); no alternative means existed to identify the subscriber; and the information was necessary to proceed with the case.
However, the court determined the fifth factor—expectation of privacy—weighed against granting the request without safeguards.
Citing In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y. 2012), the court emphasized that an IP address identifies a location, not a specific user, and that the nature of the alleged content (pornographic films) heightened the risk of reputational harm and coercive settlements for a misidentified subscriber.
Consequently, the court authorized a subpoena limited to the subscriber's name and address but imposed strict procedural protections: Plaintiff must serve the identified person with a copy of the order within 10 days; no formal service of process is permitted without further court order; the parties are invited to an informal conference to discuss a motion to quash or service procedures; attendance is voluntary and does not constitute an appearance; Plaintiff is barred from revealing the defendant's identity until permitted by the court; and Plaintiff must file a status report within 60 days.
Key Takeaways
- The court applied the 'good cause' standard under Rule 26(d) and the five-factor Arista Records test to evaluate an ex parte request for pre-Rule 26(f) discovery to unmask a Doe defendant via ISP subpoena.
- While the plaintiff satisfied the first four Arista factors (prima facie case, specificity, no alternative means, necessity), the court found the fifth factor—privacy expectation—required significant safeguards due to the tenuous link between an IP subscriber and the actual infringer.
- The court highlighted the heightened privacy and reputational risks in adult film copyright cases, noting the danger of coercive settlements against misidentified subscribers.
- The order permits limited discovery (name and address only) but stays formal service of process, mandates notification of the identified subscriber, and invites an informal conference to allow a motion to quash before litigation proceeds.
- Plaintiff is strictly prohibited from disclosing the defendant's identity publicly or privately until the court authorizes such disclosure.
Why It Matters
This order exemplifies the Eastern District of California's cautious approach to 'copyright troll' litigation involving adult content and BitTorrent swarms.
By adopting the Arista factors and relying heavily on In re BitTorrent (E.D.N.Y. 2012), the court acknowledges the well-documented discrepancy between an IP subscriber and the actual infringer, particularly in shared household or wireless networks.
The procedural safeguards—mandatory notification, a pre-service informal conference, a ban on public identification, and a 60-day status report—are designed to prevent the 'settlement factory' dynamic where plaintiffs leverage the embarrassment of adult content allegations to extract quick settlements from potentially innocent subscribers.
The ruling leaves open the ultimate question of whether the identified subscriber is the proper defendant, explicitly preserving the right to file a motion to quash and requiring further court approval before formal service of process.
The order also creates a staged process before the subscriber is publicly named. The ISP must preserve identifying records, notify the subscriber, and withhold production during the objection period. Any subpoena challenge may be filed anonymously, and the plaintiff may not publicly reveal the identified person without later court permission.
The subscriber is not automatically treated as the infringer merely because the account was assigned the observed IP address. The court’s conference procedure preserves room to contest identification, seek to quash the subpoena, discuss service, or explore resolution before ordinary litigation begins.