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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Brett L. Gibbs, Esq. (SBN 251000)
Steele Hansmeier PLLC.
38 Miller Avenue, #263
Mill Valley, CA 94941
415-325-5900
[e-mail]

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Attorney for Petitioner
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA

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In the Matter Of a Petition By,

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INGENUITY 13 LLC,
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No.2:11-mc-00084 JAM DAD
ORDER GRANTING
PETITIONER’S VERIFIED PETITION
TO PERPETUATE TESTIMONY

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ORDER GRANTING PETITIONER’S VERIFIED PETITION TO PERPETUATE
TESTIMONY
On October 28, 2011, Plaintiff filed its Verified Petition to Perpetuate Tetimony (hereinafter

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merely “Petition”) pursuant to Federal Rule of Civil Procedure (“FRCP”) 27. In its Petition,

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Petitioner requested an Order from this Court pursuant to FRCP 27 authorizing the issuance of

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subpoenas duces tecum to the Internet Service Providers (“ISP”) listed on Exhibit A to its Petition.

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Having considered Petitoiner’s Petition, Exhibits, and suporting Memorandum of Law, the Court

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hereby finds that Petitioner has satisified the necessary elements required by the Ninth Circuit when

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bringing forth a FRCP 27 petition. See, e.g., Tennison v. Henry, 203 F.R.D. 435 (N.D. Cal. 2001)

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(elements discussed). Specifically, Petitioner has shown that discovery is essential to permit
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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

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(WWE), 2010 WL 1957864, at *1 (D. Conn. May 17, 2010) (granting Rule 27 request by

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prospective plaintiff to subpoena information from communications company for purposes of

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learning the identity of a subscriber using a certain IP address so that individual could be named as a

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defendant in an action alleging unauthorized access to plaintiff’s computer system); General Board
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of Global Ministries of the United Methodist Church v. Cablevision Lightpath, Inc., No. CV 06-

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3669 (DRH)(ETB, 2006 WL 3479332, at *4-5 (E.D.N.Y. Nov. 30, 2006) (granting Rule 27 request

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where the “identity of the unknown party defendant may be obtained through Cablevision, which is

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able to match the IP address to its subscriber” and where Cablevision destroys that information in the

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ordinary course of business after 90 days).
In light of this, the Court hereby GRANTS Petitioner’s Petition and adopts the general

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discovery plan proposed in Plaintiff’s Memorandum of Law in Support of Rule 27 Verified Petition.
Accordingly, IT IS ORDERED THAT:
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Petitioner may immediately serve Rule 45 subpoenas on the ISPs listed in

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Exhibit A to the Petition to obtain the following information about the

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subscribers corresponding to the IP addresses listed on Exhibit B: the

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names, addresses, telephone numbers, email addresses, and media access

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control information.

Each subpoena shall have a copy of this Order

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attached.

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2.

Each ISP will have thirty (30) days from the date a copy of this Order and

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a copy of the subpoena are served to respond, so that it may have

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sufficient time to provide notice to the subscribers whose information

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Petitioner seeks to obtain.

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3.

Acount holders shall have thirty (30) days from the date of notice of the

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subpoena upon them to file relevant motions in this Court to contest the
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[PROPOSED] ORDER GRANTING VERIFIED PETITION TO PERPETUATE

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subpoena. Account holders only have standing to raise certain objections

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to Petitioner’s subpoena. For example, under Federal Rule of Civil

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Procedure 45, an individual can move to quash a nonparty subpoena if it

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“requires disclosure of privileged or other protected matter, if no
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exception or waiver applies.” Fed. R. Civ. P. 45(c)(3)(A)(iii). If the thirty-

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day period lapses without a contest, the ISPs will have ten (10) days

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thereafter to produce the information responsive to the subpoena to

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Petitioner.

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4.

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The subpoenaed entity shall preserve any subpoenaed information pending
the resolution of any time-filed motion to quash.

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5.

Any ISP that receives a subpoena pursuant to this Order shall confer with
Petitioner before assesing any charge in advance of providing the

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information requested in the subpoena. Any ISP that elects to charge for

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the costs of production shall provide Petitioner with a billing summary and

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cost reports.

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6.

Petitioner shall serve a copy of this Order along with any subpoenas issued

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pursuant to this Order to the necessary ISP entities.
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7.

Any information disclosed to Petitioner in response to a Rule 45 subpoena

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may not be used for any improper purpose and may only be used for

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protecting its rights as set forth in the Petition.

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IT IS SO ORDERED.
Dated: 11/11/2011

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[PROPOSED] ORDER GRANTING VERIFIED PETITION TO PERPETUATE

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DDAD1/orders.civil/ingenuity13llc.0084.prop-order.ReR27.doc

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[PROPOSED] ORDER GRANTING VERIFIED PETITION TO PERPETUATE