Hard Drive Productions, Inc. v. Does 1-53

Filing 14

ORDER GRANTING PLAINTIFF LEAVE TO TAKE EARLY DISCOVERY; re 12 Affidavit filed by Hard Drive Productions, Inc. Signed by Judge Elizabeth D Laporte on 08/02/2011. (kns, COURT STAFF) (Filed on 8/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HARD DRIVE PRODUCTIONS,
Plaintiff,

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United States District Court
For the Northern District of California

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No. C-11-2330 EDL
ORDER GRANTING PLAINTIFF LEAVE
TO TAKE EARLY DISCOVERY

v.
DOES 1-53,
Defendant.

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On May 13, 2011, Plaintiff filed an Application for Leave to Take Expedited Discovery,

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seeking a court order for leave to serve immediate discovery on various Internet Service Providers

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(ISPs) to identify each defendant through service of a Federal Rule of Civil Procedure 45 subpoena

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seeking the true names, addresses, telephone numbers, e-mail addresses and Media Access Control

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information of subscribers assigned to each of the Internet Protocol (“IP”) addresses that Plaintiff

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has identified. Plaintiff alleges that the Doe Defendants as identified by the IP addresses, have

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reproduced, distributed and publicly displayed Plaintiff’s copyrighted materials through a

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peer-to-peer sharing network. This Court denied the application without prejudice due to an

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inadequate showing that the Defendants were properly joined. Plaintiff subsequently filed a Revised

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Application on June 16, 2011 with an extended discussion on joinder.

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On July 14, 2011, this Court again denied the application without prejudice because Plaintiff

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did not make a sufficient showing that the Doe Defendants were participating in a common

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BitTorrent swarm and a leave was granted for Plaintiff to submit a declaration to remedy the

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deficiency. Plaintiff then filed its Supplemental Declaration of Peter Hansmeier, confirming that all

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the Doe Defendants participated in a common swarm because the torrent file shared among the
swarm was identified by a unique file hash. Hansmeier Supp. Decl., ¶ 5.

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Having considered Plaintiff’s Supplemental Declaration of Peter Hansmeier as well as

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Plaintiff’s prior submissions, the Court hereby GRANTS Plaintiff’s Revised Ex Parte Application

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on the grounds that Plaintiff has demonstrated good cause to take early discovery. Plaintiff has met

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the burden of showing that the information requested by the discovery was necessary to effect

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service on the Doe Defendants, as well as demonstrating a basis for joining the Doe Defendants in

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this action.

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Accordingly, IT IS HERE BY ORDERED, that:

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1. Plaintiff may immediately serve Rule 45 subpoenas on the ISPs listed in Exhibit A to the

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Complaint: Verizon Online, Cox Communications, Comcast Cable Communications, AT & T

United States District Court
For the Northern District of California

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Internet Services, Charter Communications, and Road Runner to obtain the following

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information about the subscribers corresponding to the IP addresses: the names, addresses,

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telephone numbers, email addresses, and Media Access Control information. Each subpoena

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shall have a copy of this Order attached.

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

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subpoena are served to respond, so that it may have sufficient time to provide notice to the

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subscribers whose information Plaintiff seeks to obtain.

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3. Subscribers will have thirty (30) days from the date of notice of the subpoena upon them to

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file any motions in this Court to contest the subpoena. If the thirty-day period lapses without a

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contest, the ISPs will have ten (10) days thereafter to produce the information responsive to the

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subpoena to Plaintiff.

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4. The subpoenaed entity shall preserve any subpoenaed information pending the resolution of

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any timely-filed motion to quash.

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5. Any ISP that receives a subpoena pursuant to this Order shall confer with Plaintiff before

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assessing any charge in advance of providing the information requested in the subpoena. Any

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ISP that elects to charge for the costs of production shall provide Plaintiff with a billing

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summary and cost reports.

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6. Plaintiff shall serve a copy of this Order along with any subpoenas issued pursuant to this

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Order to the necessary entities.
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7. Any information disclosed to Plaintiff in response to a Rule 45 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

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Complaint.

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IT IS SO ORDERED.

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Dated: August 2 ,2011
ELIZABETH D. LAPORTE
United States Magistrate Judge

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United States District Court
For the Northern District of California

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