Ingenuity 13 LLC

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 11/10/2011 ORDERING that the Court hereby GRANTS Petitioner's 1 Petition and adopts the general discovery plan proposed in Plaintiff's Memorandum of Law in Support of Rule 27 Verified Petition. (Duong, D)

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1 2 3 Brett L. Gibbs, Esq. (SBN 251000) Steele Hansmeier PLLC. 38 Miller Avenue, #263 Mill Valley, CA 94941 415-325-5900 4 Attorney for Petitioner 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 In the Matter Of a Petition By, ) ) INGENUITY 13 LLC, ) ) ) ) ) ) ____________________________________) No.2:11-mc-00084 JAM DAD ORDER GRANTING PETITIONER’S VERIFIED PETITION TO PERPETUATE TESTIMONY 15 16 17 ORDER GRANTING PETITIONER’S VERIFIED PETITION TO PERPETUATE TESTIMONY On October 28, 2011, Plaintiff filed its Verified Petition to Perpetuate Tetimony (hereinafter 18 19 merely “Petition”) pursuant to Federal Rule of Civil Procedure (“FRCP”) 27. In its Petition, 20 Petitioner requested an Order from this Court pursuant to FRCP 27 authorizing the issuance of 21 subpoenas duces tecum to the Internet Service Providers (“ISP”) listed on Exhibit A to its Petition. 22 Having considered Petitoiner’s Petition, Exhibits, and suporting Memorandum of Law, the Court 23 hereby finds that Petitioner has satisified the necessary elements required by the Ninth Circuit when 24 bringing forth a FRCP 27 petition. See, e.g., Tennison v. Henry, 203 F.R.D. 435 (N.D. Cal. 2001) 25 (elements discussed). Specifically, Petitioner has shown that discovery is essential to permit 26 27 28 Petitioner to bring suit against a potential defendant(s), and this information sought may soon no longer be available to Petitioner. See GWA, LLC v. Cox Communications, Inc., No. #:10-cv-741 1 (WWE), 2010 WL 1957864, at *1 (D. Conn. May 17, 2010) (granting Rule 27 request by 2 prospective plaintiff to subpoena information from communications company for purposes of 3 learning the identity of a subscriber using a certain IP address so that individual could be named as a 4 defendant in an action alleging unauthorized access to plaintiff’s computer system); General Board 5 6 of Global Ministries of the United Methodist Church v. Cablevision Lightpath, Inc., No. CV 06- 7 3669 (DRH)(ETB, 2006 WL 3479332, at *4-5 (E.D.N.Y. Nov. 30, 2006) (granting Rule 27 request 8 where the “identity of the unknown party defendant may be obtained through Cablevision, which is 9 able to match the IP address to its subscriber” and where Cablevision destroys that information in the 10 11 ordinary course of business after 90 days). In light of this, the Court hereby GRANTS Petitioner’s Petition and adopts the general 12 13 14 15 discovery plan proposed in Plaintiff’s Memorandum of Law in Support of Rule 27 Verified Petition. Accordingly, IT IS ORDERED THAT: 1. Petitioner may immediately serve Rule 45 subpoenas on the ISPs listed in 16 Exhibit A to the Petition to obtain the following information about the 17 subscribers corresponding to the IP addresses listed on Exhibit B: the 18 names, addresses, telephone numbers, email addresses, and media access 19 control information. Each subpoena shall have a copy of this Order 20 attached. 21 22 2. Each ISP will have thirty (30) days from the date a copy of this Order and 23 a copy of the subpoena are served to respond, so that it may have 24 sufficient time to provide notice to the subscribers whose information 25 Petitioner seeks to obtain. 26 3. Acount holders shall have thirty (30) days from the date of notice of the 27 subpoena upon them to file relevant motions in this Court to contest the 28 2 [PROPOSED] ORDER GRANTING VERIFIED PETITION TO PERPETUATE 1 subpoena. Account holders only have standing to raise certain objections 2 to Petitioner’s subpoena. For example, under Federal Rule of Civil 3 Procedure 45, an individual can move to quash a nonparty subpoena if it 4 “requires disclosure of privileged or other protected matter, if no 5 exception or waiver applies.” Fed. R. Civ. P. 45(c)(3)(A)(iii). If the thirty- 6 7 day period lapses without a contest, the ISPs will have ten (10) days 8 thereafter to produce the information responsive to the subpoena to 9 Petitioner. 10 4. 11 The subpoenaed entity shall preserve any subpoenaed information pending the resolution of any time-filed motion to quash. 12 13 5. Any ISP that receives a subpoena pursuant to this Order shall confer with Petitioner before assesing any charge in advance of providing the 14 15 information requested in the subpoena. Any ISP that elects to charge for 16 the costs of production shall provide Petitioner with a billing summary and 17 cost reports. 18 6. Petitioner shall serve a copy of this Order along with any subpoenas issued 19 pursuant to this Order to the necessary ISP entities. 20 21 7. Any information disclosed to Petitioner in response to a Rule 45 subpoena 22 may not be used for any improper purpose and may only be used for 23 protecting its rights as set forth in the Petition. 24 25 IT IS SO ORDERED. Dated: 11/11/2011 26 27 28 3 [PROPOSED] ORDER GRANTING VERIFIED PETITION TO PERPETUATE 1 2 DDAD1/orders.civil/ingenuity13llc.0084.prop-order.ReR27.doc 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 [PROPOSED] ORDER GRANTING VERIFIED PETITION TO PERPETUATE

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