Boy Racer, Inc. v Doe

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 4/30/2012 ORDERING that Plaintiff's 11 Motion for Discovery of Identifying Information is submitted without a hearing, and the 5/10/2012 hearing on plaintiff's motion is VACATED. Plaintiff's 11 Motion for Discovery of Identifying Information is DENIED. (Zignago, K.)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

BOY RACER, INC.,

11
12
13

Plaintiff,

No. 2:11-cv-03072 MCE KJN

v.
PHILIP WILLIAMSON,

14

Defendant.

ORDER
/

15
16

Presently before the court is plaintiff’s unopposed Motion for Discovery of

17

Identifying Information, which seeks an order compelling non-party internet service providers

18

(“ISPs”) to respond to plaintiff’s third-party subpoenas despite the fact that the record supports

19

that: (1) plaintiff has not actually served any such subpoenas on any ISP pursuant to Federal Rule

20

of Civil Procedure 45; and (2) no ISP has moved to quash or otherwise objected to a third-party

21

subpoena or the discovery sought.1 Because oral argument would not materially aid the

22

resolution of the pending motion, this matter is submitted on the briefs and record without a

23

hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). In short, the undersigned denies

24

plaintiff’s motion as prematurely filed, as no actual dispute is presently before the court.

25
1

26

This matter was referred to the undersigned pursuant to Eastern District of California Local
Rule 302(c)(1) and 28 U.S.C. § 636(b)(1).
1

1

Plaintiff commenced this copyright infringement case against “John Doe,”

2

alleging that unknown defendants, one of whom was associated with a specific Internet Protocol

3

(“IP”) address, were infringing on plaintiff’s copyrighted works through use of a peer-to-peer file

4

sharing or distribution network. (See Compl. ¶¶ 1-2, 5.) Plaintiff subsequently filed an

5

Amended Complaint that names Philip Williamson as the only defendant, but which still alleges

6

a civil conspiracy among Williamson and multiple unknown co-conspirators (Dkt. No. 7).

7

Williamson filed an answer to plaintiff’s Amended Complaint (Dkt. No. 9) in

8

which Williamson admits to the willful infringement of plaintiff’s copyrights, as well as his

9

participation in the alleged conspiracy. (See, e.g., Am. Compl. ¶¶ 28-33, 35-39.) It appears that

10

the parties have already conducted their discovery conference pursuant to Federal Rule of Civil

11

Procedure 26(f), as they filed a Joint Case Management Conference Report and Rule 26(f)

12

Discovery Plan on March 9, 2012 (Dkt. No. 10).

13

On March 29, 2012, plaintiff filed its Motion for Discovery of Identifying

14

Information. It is motion, plaintiff represents that although it was able to identify Williamson as

15

an infringer of its copyrights, it is presently unable to identify the actual name of any of

16

Williamson’s “joint tortfeasors.” (See Hansmeier Decl. ¶ 20.) However, plaintiff asserts that it

17

has compiled a list of unique IP addresses associated with the alleged co-conspirators at the time

18

of the alleged infringement, as well as the ISPs associated with those IP addresses. (Id. ¶ 20, 25-

19

26 & Ex. A.) Through its motion for discovery, plaintiff seeks an order that compels the non-

20

party ISPs to comply with subpoenas requesting the identities of the subscribers affiliated with

21

the IP addresses on defendant’s list of IP addresses.

22

The court denies plaintiff’s motion in two respects. First, plaintiff’s motion

23

suggests that it is seeking leave from the court to conduct “immediate” third-party discovery.

24

(See Mot. for Discovery at 1.) To the extent that plaintiff seeks immediate or expedited

25

discovery, the court denies plaintiff’s motion as moot. The parties have already conducted their

26

Rule 26(f) discovery conference, and, therefore, plaintiff may commence discovery without leave
2

1

of court. See Fed. R. Civ. P. 26(d) (stating that with certain exceptions, “[a] party may not seek

2

discovery from any source before the parties have conferred as required by Rule 26(f)”).

3

Second, the court denies plaintiff’s motion for an order compelling the non-party

4

ISPs’ compliance with yet-to-be-served subpoenas as prematurely filed. Plaintiff’s motion does

5

not suggest that it has served subpoenas on any of the non-party ISPs seeking the identities of the

6

subscribers associated with the IP addresses identified as being engaged in alleged acts of

7

copyright infringement. Furthermore, the motion does not suggest that plaintiff has informally

8

requested, and been refused, such information from any ISP. Nevertheless, plaintiff seeks an

9

order compelling compliance with subpoenas that have not actually been served, i.e., plaintiff

10

seeks an order compelling compliance with a discovery obligation that does not actually exist.

11

Plaintiff offers arguments in support of its contentions that the discovery sought is relevant; not

12

overly burdensome; and does not prejudice certain “anonymous speech interests.” (See Mot. for

13

Discovery at 4-10.) But plaintiff’s discussion is entirely premature, as plaintiff has not served

14

any Rule 45 subpoenas. And as one might logically expect, the record does not suggest that any

15

ISP has moved to quash any subpoena or otherwise objected to the production of the information

16

sought by plaintiff. The court will not assess the merits of, or provide an advisory opinion

17

addressing, plaintiff’s one-sided arguments when no subpoena has even been propounded or

18

challenged.

19

The court briefly addresses plaintiff’s passing and factually unsupported argument

20

that “many of the ISPs are ‘cable providers’ within the meaning of 47 U.S.C. § 551(c)(2)(B) and

21

a ‘court order’ is required to compel a ‘cable provider’ to disclose the identity of its subscribers

22

under that statute.”2 (Mot. for Discovery at 2.) Plaintiff’s argument is flawed or incomplete for

23

at least two reasons. First, plaintiff has not specifically identified which ISPs at issue are actually

24
2

25
26

In relevant part, 47 U.S.C. § 551(c)(2)(B) provides that a cable operator may disclose
personally identifiable information concerning a subscriber if the disclosure is “made pursuant to a
court order authorizing such disclosure, if the subscriber is notified of such order by the person to
whom the order is directed.”
3

1

“cable operators” as defined in 47 U.S.C. § 522(5); plaintiff’s brief argument is unsupported by

2

any specific or substantiated facts. Thus, even if plaintiff’s argument were otherwise well-taken,

3

the court would be unable to fashion an appropriate order tailored only to the ISPs that are cable

4

operators. But in any event, and as discussed above, no discovery subpoena is presently awaiting

5

a response. Accordingly, plaintiff’s argument does not warrant an ex ante order compelling

6

compliance with subpoenas that have not been served.

7

For the foregoing reasons, IT IS HEREBY ORDERED that:

8

1.

9
10

Plaintiff’s Motion for Discovery of Identifying Information (Dkt. No. 11)

is submitted without a hearing, and the May 10, 2012 hearing on plaintiff’s motion is
VACATED.

11

2.

12

IT IS SO ORDERED.

13

Plaintiff’s Motion for Discovery of Identifying Information is denied.

DATED: April 30, 2012

14
15
16

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
4