AF Holdings LLC v. Unknown

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/23/12 GRANTING 6 Motion for Leave to take Expedited Discovery; plaintiff may immediately serve a Rule 45 subpoena on Bright House Networks; Bright House Networks will have 30 days to serve John Doe with a copy of the subpoena and this order. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AF HOLDINGS, LLC,

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Plaintiff,
vs.

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No. 2:12-cv-1968-LKK-EFB

JOHN DOE,
Defendant.

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ORDER
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Presently before the court is plaintiff’s ex parte application for leave to serve a third party

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subpoena prior to the Rule 26 conference. Dckt. No. 6. For the reasons stated herein, the

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request will be granted.

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I.

BACKGROUND

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Plaintiff, a producer of adult entertainment content, has filed this action against defendant

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John Doe, alleging claims for copyright infringement, contributory infringement, and negligence.

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See generally Compl., Dckt. No. 1. Plaintiff’s complaint alleges that John Doe “knowingly and

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illegally reproduced and distributed Plaintiff’s copyrighted [adult entertainment video entitled

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“Popular Demand”] by acting in concert with others via the BitTorrent file sharing protocol and,

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upon information and belief, continues to do the same.” Id. ¶ 1. Plaintiff alleges that

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“Defendant’s actual name is unknown to Plaintiff” and instead “is known to Plaintiff only by an
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Internet Protocol address (‘IP address’), which is a number assigned to devices, such as

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computers, connected to the Internet.” Id. ¶ 4. According to plaintiff, “[i]n the course of

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monitoring Internet-based infringement of its copyrighted content, Plaintiff’s agents observed

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unlawful reproduction and distribution occurring over IP address 174.134.202.20 via the

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BitTorrent file transfer protocol.” Id. Plaintiff contends that it “cannot ascertain Defendant’s

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actual identity without limited expedited discovery.” Id.

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II.

DISCUSSION

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On August 3, 2012, plaintiff filed an ex parte application for leave to take expedited

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discovery prior to the Rule 26 conference in order to obtain defendant John Doe’s identity.

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Dckt. No. 6; see also Hansmeier Decl., Dckt. No. 6-1. Specifically, plaintiff seeks to issue a

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subpoena to Bright House Networks, the third party internet service provider (“ISP”) that

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provided internet access to John Doe. Dckt. No. 6 at 2; Hansmeier Decl. ¶¶ 24, 28. Plaintiff

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contends that it has gathered evidence of infringing activities, id. ¶¶ 16-27, and that when

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presented with the IP address at issue and the date and time of infringing activity, Bright House

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Networks should be able to identify the name and address of its subscriber, John Doe, because

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“[a]n ISP generally records the times and dates that it assigns each IP address to a subscriber and

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maintains for a period of time a record of such an assignment to a subscriber in logs maintained

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by the ISP.” Id. ¶ 22. However, plaintiff argues that “ISPs typically keep log files of subscriber

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activities for only limited periods of time—sometimes for as little as months or even

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weeks—before erasing the data.” Dckt. No. 6 at 2 (citing Hansmeier Decl. ¶¶ 22, 28-29).

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Plaintiff contends that its request for expedited discovery should be granted because

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plaintiff’s need for limited early discovery outweighs any prejudice to defendant, and that ex

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parte relief is proper since there is no known defendant with whom to confer and plaintiff’s

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discovery request is directed at a third party. Dckt. No. 6 at 2. Specifically, plaintiff contends

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that without knowing defendant’s identity, plaintiff “cannot name anyone in the complaint or

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serve them with process.” Id. at 4. Plaintiff also argues that the ISP subscriber information “is
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on the verge of permanent destruction,” and that when that information is destroyed, “Plaintiff

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will have no ability to identify John Doe, and thus will be unable to prosecute its copyright

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infringement claims.” Id. at 4, 5. Plaintiff also argues that the need for limited early discovery

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outweighs any prejudice to defendant since the request is limited in scope (plaintiff only seeks

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basic identifying information), defendant has a minimal expectation of privacy in his basic

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subscriber information, and the First Amendment is not a shield for copyright infringement. Id.

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at 6-10. Finally, plaintiff contends ex parte relief is proper since there is no known defendant

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with whom to confer. Id. at 10.

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Federal Rule of Civil Procedure 26(d)(1) provides that “[a] party may not seek discovery

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from any source before the parties have conferred as required by Rule 26(f), except in a

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proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by

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these rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). Here, because plaintiff

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does not know the identity of defendant John Doe, the parties have not yet met and conferred

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under Rule 26(f). Therefore, plaintiff requests that the court authorize expedited discovery.

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Courts in the Ninth Circuit apply a “good cause” test in deciding whether to permit

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expedited discovery before the Rule 26(f) conference.1 Semitool, Inc. v. Tokyo Electron Am.,

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Inc., 208 F.R.D. 273, 275 (N.D. Cal. 2002); see also Am. LegalNet, Inc. v. Davis, 673 F. Supp.

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2d 1063, 1066 (C.D. Cal. 2009); In re Countrywide Financial Corp. Derivative Litig., 542 F.

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Supp. 2d 1160, 1179 (C.D. Cal. 2008); Matson & Isom Technology Consulting v. Dell Inc., 2008

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WL 3863447 (E.D. Cal. Aug. 19, 2008); Qwest Commc’ns Int’l, Inc., 213 F.R.D. 418, 419 (D.

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Colo. 2003) (The “party seeking expedited discovery in advance of [the] Rule 26(f) conference

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has the burden of showing good cause for the requested departure from usual discovery

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“Courts are split as to whether a party seeking expedited discovery must satisfy a ‘good
cause’ or ‘reasonableness’ standard or the more stringent standard set forth in Notaro v. Koch, 95
F.R.D. 403, 405 (S.D.N.Y. 1982), which largely tracks the standard required for obtaining a
preliminary injunction.” See Special Situations Cayman Fund, L.P. v. Dot Com Entm’t Grp.,
Inc., 2003 WL 23350128, at *1 n.7 (W.D.N.Y. Dec. 5, 2003) (detailing the split). However,
courts in the Ninth Circuit have traditionally applied the “good cause” standard.
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procedures.”). “Good cause exists ‘where the need for expedited discovery, in consideration of

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the administration of justice, outweighs the prejudice to the responding party.’” In re

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Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d at 1179 (quoting Semitool, Inc., 208

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F.R.D. at 276). The court must make this evaluation in light of “the entirety of the record . . .

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and [examine] the reasonableness of the request in light of all the surrounding circumstances.”

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Semitool, Inc., 208 F.R.D. at 275 (citation & quotation marks omitted) (emphasis removed); Am.

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Legalnet, Inc., 673 F. Supp.2d at 1067.

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Good cause for expedited discovery is frequently found in cases involving claims of
infringement and unfair competition or in cases where the plaintiff seeks a preliminary

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injunction. Semitool, Inc., 208 F.R.D. at 276; Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd.

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Liability Co., 204 F.R.D. 675, 676 (D. Colo. 2002). Recently, several courts have found good

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cause to allow expedited discovery to ascertain the identities of Doe defendants in copyright

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infringement actions. See, e.g., Arista Records LLC v. Does 1-43, 2007 WL 4538697, at *1

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(S.D. Cal. Dec. 20, 2007); SBO Pictures, Inc. v. Does 1-3036, 2011 WL 6002620 (N.D. Cal.

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Nov. 30, 2011) (authorizing expedited discovery as to one of the doe defendants and dismissing

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the remaining doe defendants); Hard Drive Prods., Inc. v. Does 1-130, 2011 WL 5573960 (N.D.

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Cal. Nov. 16, 2011) (same); AF Holdings LLC v. Does 1-97, 2011 WL 2912909 (N.D. Cal. July

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20, 2011) (same); Pac. Century Int’l Ltd. v. Does 1-101, 2011 WL 2690142 (N.D. Cal. July 8,

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2011) (same); AF Holdings LLC v. Does 1-96, 2011 WL 5864174 (N.D. Cal. Nov. 22, 2011)

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(authorizing expedited discovery as to the 96 doe defendants); Berlin Media Art E.K. v. Does 1-

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146, 2011 WL 4056167 (E.D. Cal. Sept. 12, 2011) (authorizing expedited discovery as to the 146

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doe defendants); but see Hard Drive Prods., Inc. v. Doe, 2012 WL 90412 (E.D. Cal. Jan. 11,

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2012) (denying request for expedited discovery where plaintiff sought to depose an individual

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that plaintiff was able to identify); Pac. Century Int’l Ltd. v. Does 1-101, 2011 WL 5117424

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(N.D. Cal. Oct. 27, 2011) (denying request for expedited discovery).

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For example, in Arista Records LLC, the plaintiffs alleged that unidentified defendants

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had used an online media distribution system to download and distribute plaintiffs’ copyrighted

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works to the public without permission. Arista Records LLC, 2007 WL 4538697, at *1.

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Because the plaintiffs were only able to identify each defendant by a unique internet protocol

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address assigned to that defendant, plaintiffs filed an ex parte application seeking leave to serve

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immediate discovery on a third-party ISP to identify the Doe defendants’ true identities. Id. The

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court found good cause to allow expedited discovery based on the plaintiffs’ prima facie

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showing of infringement, the risk that the ISP would not long preserve the information sought,

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the narrow tailoring of the requests to the minimum amount of information needed to identify the

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defendants without prejudicing their rights, and the fact that the expedited discovery would

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substantially contribute to moving the case forward. Id. The court further noted that, without

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such discovery, plaintiffs could not identify the Doe defendants and would not be able to pursue

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their lawsuit to protect their copyrighted works from infringement. Id.

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Other courts have specifically noted that “[i]n this particular context, the court must

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balance ‘the need to provide injured parties with an [sic] forum in which they may seek redress

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for grievances’ against ‘the legitimate and valuable right to participate in online forums

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anonymously or pseudonymously . . . without fear that someone who wishes to harass or

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embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to

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discover their identity.’” Hard Drive Prods., Inc., 2011 WL 5573960, at *1 (quoting Columbia

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Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999)).

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Here, plaintiff has demonstrated good cause to conduct the expedited discovery

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requested. Since John Doe is the only defendant asserted in the complaint, plaintiff cannot

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proceed with this lawsuit without obtaining John Doe’s identity. UMG Recordings, Inc. v. Does

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1-4, 2006 WL 1343597, at *1 (N.D. Cal. Apr. 19, 2006). Additionally, as plaintiff contends in

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its application, there is a high risk that the ISP used by John Doe may destroy the information

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plaintiff seeks and thereby preclude plaintiff from discovering John Doe’s true identity. Id.
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Further, copyright infringement claims “necessarily involve[ ] irreparable harm to Plaintiff [ ], as

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a copyright holder is presumed to suffer irreparable harm as a matter of law” when the ambit of

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its copyright is invaded. Id. Accordingly, plaintiff’s request to subpoena Bright House

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Networks to obtain limited information needed to identify defendant John Doe (name, addresses,

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telephone numbers, and email addresses) will be granted.

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s ex parte application for leave to take expedited discovery, Dckt. No. 6, is

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granted.
2. Plaintiff may immediately serve a Rule 45 subpoena on Bright House Networks to

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obtain the following information about defendant John Doe (based on the IP address listed for

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him in the complaint – 174.134.202.20): name, address, telephone number, and email address. A

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copy of this order shall be attached to the subpoena.

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3. Bright House Networks will have thirty (30) days from the date a copy of this Order

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and a copy of the subpoena are served upon it to serve John Doe with a copy of the subpoena and

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a copy of this order. Bright House Networks may serve John Doe using any reasonable means,

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including written notice sent to Doe’s last known address, transmitted either by first-class mail

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or via overnight service. Bright House Networks and John Doe each shall have 30 days from the

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date of service to file any motions in this court contesting the subpoena (including a motion to

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quash or modify the subpoena). If that 30-day period lapses without John Doe or Bright House

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Networks contesting the subpoena, Bright House Networks shall have 14 days to produce to

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plaintiff the information responsive to the subpoena with respect to John Doe.

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4. Bright House Networks shall confer with plaintiff before assessing any charge in

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advance of providing the information requested in the subpoena. If Bright House Networks

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elects to charge for the costs of production, Bright House Networks shall provide plaintiff with a

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billing summary and cost reports.
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5. Bright House Networks shall preserve all subpoenaed information pending Bright

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House Networks’s delivery of such information to plaintiff or the final resolution of a timely

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filed and granted motion to quash the subpoena with respect to such information.

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6. Any information disclosed to plaintiff in response to the subpoena may not be used for

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any improper purpose and may only be used for protecting its rights as set forth in the complaint.

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SO ORDERED.
DATED: August 23, 2012.

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