Boy Racer, Inc. v Doe
Filing
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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.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BOY RACER, INC.,
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Plaintiff,
No. 2:11-cv-03072 MCE KJN
v.
PHILIP WILLIAMSON,
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Defendant.
ORDER
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Presently before the court is plaintiff’s unopposed Motion for Discovery of
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Identifying Information, which seeks an order compelling non-party internet service providers
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(“ISPs”) to respond to plaintiff’s third-party subpoenas despite the fact that the record supports
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that: (1) plaintiff has not actually served any such subpoenas on any ISP pursuant to Federal Rule
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of Civil Procedure 45; and (2) no ISP has moved to quash or otherwise objected to a third-party
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subpoena or the discovery sought.1 Because oral argument would not materially aid the
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resolution of the pending motion, this matter is submitted on the briefs and record without a
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hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). In short, the undersigned denies
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plaintiff’s motion as prematurely filed, as no actual dispute is presently before the court.
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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).
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Plaintiff commenced this copyright infringement case against “John Doe,”
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alleging that unknown defendants, one of whom was associated with a specific Internet Protocol
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(“IP”) address, were infringing on plaintiff’s copyrighted works through use of a peer-to-peer file
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sharing or distribution network. (See Compl. ¶¶ 1-2, 5.) Plaintiff subsequently filed an
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Amended Complaint that names Philip Williamson as the only defendant, but which still alleges
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a civil conspiracy among Williamson and multiple unknown co-conspirators (Dkt. No. 7).
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Williamson filed an answer to plaintiff’s Amended Complaint (Dkt. No. 9) in
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which Williamson admits to the willful infringement of plaintiff’s copyrights, as well as his
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participation in the alleged conspiracy. (See, e.g., Am. Compl. ¶¶ 28-33, 35-39.) It appears that
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the parties have already conducted their discovery conference pursuant to Federal Rule of Civil
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Procedure 26(f), as they filed a Joint Case Management Conference Report and Rule 26(f)
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Discovery Plan on March 9, 2012 (Dkt. No. 10).
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On March 29, 2012, plaintiff filed its Motion for Discovery of Identifying
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Information. It is motion, plaintiff represents that although it was able to identify Williamson as
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an infringer of its copyrights, it is presently unable to identify the actual name of any of
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Williamson’s “joint tortfeasors.” (See Hansmeier Decl. ¶ 20.) However, plaintiff asserts that it
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has compiled a list of unique IP addresses associated with the alleged co-conspirators at the time
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of the alleged infringement, as well as the ISPs associated with those IP addresses. (Id. ¶ 20, 25-
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26 & Ex. A.) Through its motion for discovery, plaintiff seeks an order that compels the non-
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party ISPs to comply with subpoenas requesting the identities of the subscribers affiliated with
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the IP addresses on defendant’s list of IP addresses.
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The court denies plaintiff’s motion in two respects. First, plaintiff’s motion
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suggests that it is seeking leave from the court to conduct “immediate” third-party discovery.
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(See Mot. for Discovery at 1.) To the extent that plaintiff seeks immediate or expedited
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discovery, the court denies plaintiff’s motion as moot. The parties have already conducted their
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Rule 26(f) discovery conference, and, therefore, plaintiff may commence discovery without leave
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of court. See Fed. R. Civ. P. 26(d) (stating that with certain exceptions, “[a] party may not seek
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discovery from any source before the parties have conferred as required by Rule 26(f)”).
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Second, the court denies plaintiff’s motion for an order compelling the non-party
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ISPs’ compliance with yet-to-be-served subpoenas as prematurely filed. Plaintiff’s motion does
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not suggest that it has served subpoenas on any of the non-party ISPs seeking the identities of the
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subscribers associated with the IP addresses identified as being engaged in alleged acts of
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copyright infringement. Furthermore, the motion does not suggest that plaintiff has informally
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requested, and been refused, such information from any ISP. Nevertheless, plaintiff seeks an
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order compelling compliance with subpoenas that have not actually been served, i.e., plaintiff
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seeks an order compelling compliance with a discovery obligation that does not actually exist.
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Plaintiff offers arguments in support of its contentions that the discovery sought is relevant; not
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overly burdensome; and does not prejudice certain “anonymous speech interests.” (See Mot. for
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Discovery at 4-10.) But plaintiff’s discussion is entirely premature, as plaintiff has not served
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any Rule 45 subpoenas. And as one might logically expect, the record does not suggest that any
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ISP has moved to quash any subpoena or otherwise objected to the production of the information
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sought by plaintiff. The court will not assess the merits of, or provide an advisory opinion
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addressing, plaintiff’s one-sided arguments when no subpoena has even been propounded or
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challenged.
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The court briefly addresses plaintiff’s passing and factually unsupported argument
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that “many of the ISPs are ‘cable providers’ within the meaning of 47 U.S.C. § 551(c)(2)(B) and
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a ‘court order’ is required to compel a ‘cable provider’ to disclose the identity of its subscribers
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under that statute.”2 (Mot. for Discovery at 2.) Plaintiff’s argument is flawed or incomplete for
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at least two reasons. First, plaintiff has not specifically identified which ISPs at issue are actually
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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.”
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“cable operators” as defined in 47 U.S.C. § 522(5); plaintiff’s brief argument is unsupported by
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any specific or substantiated facts. Thus, even if plaintiff’s argument were otherwise well-taken,
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the court would be unable to fashion an appropriate order tailored only to the ISPs that are cable
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operators. But in any event, and as discussed above, no discovery subpoena is presently awaiting
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a response. Accordingly, plaintiff’s argument does not warrant an ex ante order compelling
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compliance with subpoenas that have not been served.
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For the foregoing reasons, IT IS HEREBY ORDERED that:
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1.
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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.
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2.
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IT IS SO ORDERED.
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Plaintiff’s Motion for Discovery of Identifying Information is denied.
DATED: April 30, 2012
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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