Millennium TGA, Inc v. Does 1-21

Filing 14

ORDER by Judge Samuel Conti granting 10 Ex Parte Application (sclc1, COURT STAFF) (Filed on 7/22/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MILLENNIUM TGA, INC.,
Plaintiff,

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v.

For the Northern District of California

United States District Court

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DOES 1-21,

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Defendants.

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Case No. 11-2258 SC
ORDER GRANTING REQUEST FOR
LEAVE TO TAKE EARLY
DISCOVERY

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I.

INTRODUCTION
On May 6, 2011, Plaintiff Millennium TGA, Inc. ("Plaintiff")

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filed a Complaint against twenty-one unnamed defendants ("Doe

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Defendants" or "Does 1-21"), alleging copyright infringement and

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common law civil conspiracy.

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2011, the Court denied Plaintiff's ex parte application to take

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early third-party discovery in order to identify the Doe

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Defendants.

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that Plaintiff's common law civil conspiracy action did not support

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its request for early discovery, because Plaintiff had not

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established it could survive a motion to dismiss.

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Court found that Plaintiff's copyright claim also did not support

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its request, because Plaintiff had failed to allege a viable claim

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against the twenty-one Doe Defendants which would render their

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joinder in this action proper.

ECF No. 1 ("Compl.").

ECF No. 8 ("May 12, 2011 Order").

Id.

On May 12,

The Court found

Id. at 5.

The

Plaintiff has since filed a First Amended Complaint ("FAC")

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and a second ex parte application to take early discovery.

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Nos. 9 ("FAC"), 10 ("Second Application").

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ECF

reasons, the Court GRANTS Plaintiff's Second Application.

For the following

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II.

BACKGROUND
Plaintiff produces and distributes adult entertainment.

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6.

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an adult video, "Ladyboy-Ladyboy-Kae" ("the Work").

FAC ¶

Specifically, Plaintiff alleges that it owns the copyright to
Id. ¶ 7.

United States District Court

For the Northern District of California

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Plaintiff claims that this Work "is the subject of a copyright

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registration application and the application is currently pending

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in the United States Copyright Office."

Id. ¶ 20.

BitTorrent is, in Plaintiff's words, a popular Internet

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Id. ¶ 8.

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protocol "allowing for 'peer-to-peer' data exchanging."

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It is a decentralized file-sharing system allowing a large number

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of users (in Internet parlance, a "swarm") to distribute a data

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file by exchanging pieces of the file with each other, so that each

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user eventually obtains a whole copy of the file.

Id. ¶¶ 11-13.

Plaintiff alleges that its Work "has been uploaded to

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virtually every one of the major BitTorrent piracy websites

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worldwide and has been the subject of large-scale piracy."

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7.

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BitTorrent users who unlawfully reproduced and distributed the Work

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through BitTorrent.

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and belief" that "each Defendant was part of the same swarm sharing

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the same work."

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of Peter Hansmeier ("Hansmeier"), who claims to be a technician at

Id. ¶

Plaintiff claims that Doe Defendants are twenty-one individual

Id. ¶ 8.

Id. ¶ 23.

Plaintiff alleges "on information

Plaintiff also submits the declaration

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Media Copyright Group, LLC ("MCG"), an Internet piracy monitoring

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company enlisted by Plaintiff to monitor peer-to-peer distribution

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of its copyrighted works.

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declares that he used MCG's proprietary forensic software to

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identify a swarm that was sharing Plaintiff's work, observe

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Defendants' infringing activity, and obtain Internet Protocol

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("IP") addresses for each of the twenty-one Doe Defendants.

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15.

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date and time of each alleged infringement, and the Internet

Second Application Ex. A.

Hansmeier

Attached to its FAC is a list of twenty-one IP addresses, the

United States District Court

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For the Northern District of California

Id. ¶

Service Provider ("ISP") associated with each IP address.

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("IP Log").

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Ex. A

Plaintiff claims that due to BitTorrent's decentralized

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nature, it can only identify the names and addresses of individuals

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associated with these IP addresses by subpoenaing the ISPs

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associated with these IP addresses.

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serve Federal Rule of Civil Procedure 45 third-party subpoenas on

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eight ISPs -- Dataframe Logistics, Covad Communications, Cox

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Communications, Verizon Online, Charter Communication, Road Runner

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HoldCo, Comcast Cable Communications, and AT&T Internet Services --

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to compel them to provide the name, address, telephone number, e-

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mail address, and media access control address of each Doe

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Defendant.

Id.

Plaintiff seeks leave to

See Second Application; IP Log.

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III. LEGAL STANDARD
Generally, a party may not initiate discovery before the

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parties have met and conferred pursuant to Federal Rule of Civil

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Procedure 26(f).

However, a court may authorize earlier discovery

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"for the convenience of parties and witnesses and in the interests

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of justice."

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demonstrate good cause for earlier discovery.

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v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).

Fed. R. Civ. P. 26(d).

The requesting party must
See Semitool, Inc.

According to the Ninth Circuit:

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[W]here the identity of alleged defendants will
not be known prior to the filing of a
complaint[,] . . . the plaintiff should be
given an opportunity through discovery to
identify the unknown defendants, unless it is
clear that discovery would not uncover the
identities, or that the complaint would be
dismissed on other grounds.

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United States District Court

For the Northern District of California

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Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).

For

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leave to conduct discovery to identify a Doe defendant, the moving

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party must: (1) identify the defendant with enough specificity to

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allow the Court to determine whether the defendant is a real person

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or entity who could be sued in federal court; (2) recount the steps

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taken to locate the defendant; (3) show that its action could

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survive a motion to dismiss; and (4) file a request for discovery

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with the Court identifying the persons or entities on whom

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discovery process might be served and for which there is a

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reasonable likelihood that the discovery process will lead to

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identifying information.

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F.R.D. 573, 578-80 (N.D. Cal. 1999).

Columbia Ins. Co. v. seescandy.com, 185

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IV.

DISCUSSION
The Court finds that Plaintiff has shown good cause for

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limited expedited discovery.

Expedited discovery is appropriate

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because ISPs typically retain subscriber logs for only a short

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period of time before destroying the information.

A third-party

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subpoena appears to be the only way Plaintiff can identify

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Defendants, and Plaintiff must identify them in order to effect

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service of process.

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filed in support of it, Plaintiff has identified the Defendants

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with the required specificity, recounted the steps taken to locate

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Defendants, and shown that its action could survive a motion to

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dismiss.

In its Second Application and the documents

United States District Court

The Court denied Plaintiff's first application because it

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For the Northern District of California

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found that there was no theory of liability under which the twenty-

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one Defendants would be joined properly in the action under Rule

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20.

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properly joined if

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May 12, 2010 Order at 5.

Under Rule 20(a)(1), defendants are

(A) any right to relief is asserted against
them jointly, severally, or in the alternative
with respect to or arising out of the same
transaction,
occurrence,
or
series
of
transactions or occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.

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Fed. R. Civ. P. 20(a)(2).
The Court wrote that "Doe Defendants' individual and separate

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alleged reproductions of Plaintiff's Work -- which occurred over

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the span of twenty days" did not satisfy Rule 20(a)(1)(A)'s "same

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transaction, occurrence, or series of transactions or occurrences"

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language, and that Plaintiff had not alleged a "plausible theory

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that the Doe Defendants are jointly or severally liable (or liable

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in the alternative) for each respective reproduction and

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distribution."

Id.

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Plaintiff cures this deficiency by alleging in the FAC that

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the twenty-one Defendants participated in a single "swarm" in which

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Plaintiff's Work was reproduced and distributed.

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is plausible in light of the level of detail provided by the

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Hansmeier declaration and the relative temporal proximity of the

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alleging acts.

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participated in a scheme to distribute the Work by sharing pieces

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of the computer file comprising the Work with the other Doe

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Defendants.

United States District Court

For the Northern District of California

As such, each Doe Defendant is alleged to have

For these reasons, Plaintiff's Request for early discovery is

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This allegation

GRANTED.

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V.

CONCLUSION

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For the above reasons, the Court GRANTS Plaintiff Millennium

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TGA, Inc.'s Second Application for leave to take early discovery.

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Within thirty (30) days of this Order, Plaintiff shall serve Rule

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45 subpoenas seeking the name, address, phone number, e-mail

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address, and Media Access Control address associated with Internet

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Protocol addresses identified in Exhibit A on the Internet Service

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Providers identified in Exhibit A to Plaintiff's First Amended

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Complaint.

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Complaint, this Order and the Court's May 12, 2011 Order.

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shall have thirty (30) days from the date of service upon them to

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serve Does with a copy of the subpoena, the FAC, and the orders.

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ISPs may serve Does using any reasonable means, including written

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notice sent to Does' last known address, transmitted either by

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first-class mail or via overnight service.

The subpoena shall include a copy of the First Amended

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ISPs

ISPs and each Doe shall

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have thirty (30) days from the date of their service to file any

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motions in this court contesting the subpoena (including a motion

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to quash or modify the subpoena).

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without Does or the ISPs contesting the subpoena, the ISPs shall

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have ten (10) days to produce to Plaintiff the information

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responsive to the subpoena with respect to Doe 1.

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preserve all subpoenaed information pending the ISPs' delivering

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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

If that thirty-day period lapses

The ISPs shall

United States District Court

For the Northern District of California

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information.

Plaintiff may use any information disclosed in

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response to a subpoena solely to protect its rights under the

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Copyright Act, 17 U.S.C. § 101, et seq.

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IT IS SO ORDERED.

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Dated:

July 22, 2011
UNITED STATES DISTRICT JUDGE

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