Unreported / Non-Citable
Background
Strike 3 Holdings, LLC sued in the Northern District of California, San Jose Division, for copyright infringement. The defendant is identified only as the subscriber assigned a particular internet protocol address. Because the defendant's name is unknown, Strike 3 moved for leave to serve a third-party subpoena on Comcast Cable, the subscriber's internet service provider, before a Rule 26(f) conference. Magistrate Judge Virginia K. DeMarchi ruled on the motion on October 16, 2026.
Early discovery is not available as of right, so the question was whether Strike 3 showed good cause. The court cited Gillespie v. Civiletti and UMG Recording, Inc. v. Doe for that standard and applied the showings described in Columbia Insurance Co. v. Seescandy.com. Those are that Strike 3 can identify the defendant with enough specificity to show a real person or entity who could be sued in federal court, that it has identified earlier steps taken to locate the defendant, that its action could withstand a motion to dismiss, and that discovery is reasonably likely to identify the defendant so service would be possible. The court also noted that Strike 3's application indicates it has satisfied the registration requirement of 17 U.S.C. section 411(a), citing Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC.
The Court’s Holding
The court granted the motion, finding that Strike 3 established good cause. This is a discovery ruling only. It does not decide whether anyone infringed, does not find any person liable, and does not resolve the merits. The statement that the action could withstand a motion to dismiss was part of the good cause analysis at this early stage.
The order lets Strike 3 serve a Rule 45 subpoena on Comcast commanding it to provide the true name and address of the subscriber to whom the address was assigned, and Strike 3 must attach the order to the subpoena. Comcast must serve the subpoena and order on the subscriber within 30 days of service on Comcast, by any reasonable means, including first-class or overnight mail to the last known address. Strike 3 may use the information only to protect and enforce its rights as set forth in its complaint. Comcast may object and may seek a protective order. If Comcast produces identifying information, Strike 3 may not publicly disclose it absent the subscriber's consent or leave of court.
The court also cautioned that once Strike 3 learns the defendant's identity, it cannot rely on a bare allegation that the defendant is the registered subscriber of an address associated with infringing activity to state a plausible claim for direct or contributory infringement, citing Cobbler Nevada, LLC v. Gonzales. Still, at this stage and on the record presented, Strike 3 may seek discovery to ascertain the defendant's identity. The court cited Glacier Films (USA), Inc. v. Turchin, which described limited discovery from an internet service provider as a sensible way to manage a docket.
Key Takeaways
- The order is a limited pre-Rule 26(f) discovery ruling; it does not decide infringement, liability, or the sufficiency of the complaint.
- The court applied the Columbia Insurance showings, together with Gillespie, to find good cause for early discovery from an internet service provider.
- The subscriber receives notice through Comcast within 30 days of service of the subpoena, and Comcast may object or seek a protective order.
- Strike 3 must use any identifying information only to protect and enforce its rights as set out in its complaint, and may not publicly disclose it without the subscriber's consent or leave of court.
- Under Cobbler Nevada, being the registered subscriber of an address tied to infringing activity is not enough alone to plead direct or contributory infringement, so Strike 3 must allege more after learning the identity.
Why It Matters
This order shows how a Northern District magistrate judge handles a familiar request: a copyright plaintiff that cannot name a defendant seeks the subscriber's identity from an internet service provider before the usual discovery conference. The court allowed the subpoena but paired it with notice to the subscriber, an avenue to object, a limit on use, and a bar on public disclosure. Those conditions protect the privacy of a person who may not be the infringer.
Much remains open. The order does not say that the subscriber infringed anything, and the court expressly flagged that Strike 3 will need more than subscriber status to state a plausible claim. Whether Comcast objects, what it produces, and whether Strike 3 can plead and prove infringement are all unresolved. As an unreported district court discovery order, it carries no precedential weight.