Boy Racer Inc. v. Does 1-98

Filing 5

Ex Parte Application For, and Memorandum of Law in Support of, Leave to Take Discovery Prior to Rule 26(f) Conference filed by Boy Racer Inc.. (Attachments: # 1 Exhibit A - Hansmeier Declaration, # 2 Exhibit B - Gibbs Declaration)(Gibbs, Brett) (Filed on 5/27/2011)

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EXHIBIT B

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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]
Attorney for Plaintiff

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IN THE UNITED STATES DISTRICT COURT FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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BOY RACER, INC,

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Plaintiff,
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v.
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DOES 1-98,
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Defendants.
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____________________________________)

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No. C-11-02536 JCS
DECLARATION OF BRETT L. GIBBS
IN SUPPORT OF APPLICATION FOR
EXPEDITED DISCOVERY

DECLARATION OF BRETT L. GIBBS IN SUPPORT OF
APPLICATION FOR EXPEDITED DISCOVERY

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I, Brett L. Gibbs, declare as follows:

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1.

I am an attorney at law licensed to practice in California, and admitted in the

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Northern District of California. My business address is 38 Miller Avenue, #263, Mill Valley, CA,

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94941. I am counsel of record for Plaintiff in this matter.

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2.

The actual identities of the Doe Defendants in this matter are currently unknown.

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While their IP addresses are known, we are unable at this point, without the requested discovery

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from the Internet Service Providers listed in Exhibit A of the Complaint [DKT# 1], to connect those

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IP addresses with actual names, addresses, email addresses and Media Address Control addresses.

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DECLCARATION OF BRETT GIBBS SUPPORTING PLAINTIFF’S APPLICATION

No. C-11-02536 JCS

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As a result, no service of summons on any Doe Defendant can yet be effectuated, and this case

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essentially cannot proceed through its normal course without the requested discovery.

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3.

At this point, there is no defendant to serve a copy of Plaintiff’s Ex Parte Application

for Leave to Take Expedited Discovery. Though Plaintiff has diligently found the IP addresses of
Doe Defendants, due to Doe Defendants’ covert actions, their real names, addresses, email addresses

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and MAC addresses still elude detection. Unfortunately, Plaintiff cannot perfect service on Doe

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Defendants IP addresses.

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4.

In granting Plaintiff’s Ex Parte Application for Leave to Take Expedited Discovery,

thus permitting expedited discovery as outlined, the Court is permitting Plaintiff to defend its
copyright. Through the information supplied by via the subpoenas, Plaintiff will have sufficient

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information to name Defendants for purposes of issuing summonses, making reasonable attempts to

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serve them, and proceeding with the case. Once presented with their names, Plaintiff by and through

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its attorneys will contact these Doe Defendants and either settle matters, or begin formal service and

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naming of each Doe.

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5.

Plaintiff requests that its Ex Parte Application be addressed as soon as possible for

good reason. This is because, while Plaintiff currently has valid IP addresses belonging to actual
infringers, the ISPs consistently purge their own IP logs. A lengthy delay in granting Plaintiff’s Ex
Parte Application for Leave to Take Expedited Discovery could allow these Doe Defendant

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infringers to slip through the system undetected, and prevent Plaintiff from adequately address the

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wrongs that have been levied against it.

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6.

As referenced in the Application, this request is not unique. Recently, this Court has

granted similar applications when presented with similar legal and factual situations. See Hard Drive
Prod. Inc., v. Does 1-188, Case No. 11-1566 (DKT#12) (N.D. Cal. May 9, 2011) (Spero); Hard
Drive Prod., Inc. v. Does 1-48, Case No. 11-1957 (DKT#8) (N.D. Cal. May 17, 2011) (Spero). With
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DECLCARATION OF BRETT GIBBS SUPPORTING PLAINTIFF’S APPLICATION

No. C-11-02536 JCS

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the growth of the Internet, and the wrongful behavior occurring therein, the necessity for these

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applications have only increased of late. This Court has granted factually and legally similar

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requests.

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7.

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I declare under penalty of perjury that the foregoing is true and correct based on my

own personal knowledge, except for those matters stated on information and belief, and those

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matters I believe to be true. If called upon to testify, I can and will competently testify as set forth

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above.

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DATED: May 26, 2011
By:

____/s/ Brett L. Gibbs, _______

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DECLCARATION OF BRETT GIBBS SUPPORTING PLAINTIFF’S APPLICATION

No. C-11-02536 JCS