Ingenuity 13 LLC v. Doe

Filing 9

ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY by Hon. William Alsup granting 6 Ex Parte Application.(whalc1, COURT STAFF) (Filed on 10/22/2012)

Download PDF
1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 INGENUITY 13 LLC, 11 For the Northern District of California United States District Court 10 12 13 14 15 No. C 12-04977 WHA Plaintiff, v. ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY JOHN DOE, Defendant. / Plaintiff Ingenuity 13 LLC asserts claims of copyright infringement against an 16 unidentified John Doe for downloading and distributing plaintiff’s copyrighted adult video 17 without permission. Plaintiff claims to have identified the Internet Protocol address for the 18 unidentified Doe and seeks permission to take limited, expedited discovery in order to obtain the 19 name and contact information of the Doe associated with that IP address. 20 Rule 26(d) allows a court to authorize early discovery before the Rule 26(f) conference 21 where it is in the interests of justice. When the identity of defendant is not known before a 22 complaint is filed, the plaintiff “should be given an opportunity through discovery to identify the 23 unknown defendants unless it is clear that discovery would not uncover the identities, or that the 24 complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 25 Cir. 1980). Courts have examined whether (1) the Doe defendant is identified with sufficient 26 specificity that the court can determine that the defendant is a real person who can be sued in 27 federal court, (2) plaintiff has taken steps to locate and identify the defendant, (3) the action can 28 withstand a motion to dismiss, and (4) the discovery is likely to lead to identifying the 1 information that will permit service of process. AF Holdings LLC v. John Doe, No. Civ. 124218 2 WHA (N.D. Cal. Sept. 5, 2012) (Alsup, J.). 3 Plaintiff has shown good cause for limited, expedited discovery into the identify of Doe 4 defendant. Plaintiff has alleged that it is the exclusive rights holder to the copyrighted video 5 (Compl. ¶¶ 18–19, Exh. A). Plaintiff has gathered evidence of the Doe’s infringing activities 6 (Hansmeier Decl. ¶¶ 14–27). There is evidence that Doe used an online peer-to-peer media 7 distribution system, BitTorrent, to download plaintiff’s copyrighted video and distribute 8 plaintiff’s copyrighted video to third parties (id. ¶ 22–27). Plaintiff’s agent downloaded the 9 video file that Doe unlawfully distributed and confirmed that the file consisted of plaintiff’s copyrighted video (id. ¶ 25). All of this information was gathered by a technician using 11 For the Northern District of California United States District Court 10 procedures designed to ensure that the information gathered about Doe was accurate (id. ¶ 16). 12 Plaintiff has identified the ISP that provided Internet access to Doe as Wave Broadband (id. ¶¶ 13 24, 28). Based on the IP address, plaintiff pleads that defendant resides in or committed 14 copyright infringement in California (Compl. ¶ 6). When presented with the IP address and the 15 date and time of infringing activity, Wave Broadband should be able to identify the name and 16 address of Doe defendant because that information is contained in the ISP’s subscriber activity 17 log files (Hansmeier Decl. ¶ 22). Plaintiff’s request for discovery of Doe’s identity is not 18 prejudicial because the request is narrowly tailored to basic contact information. As the Second 19 Circuit has persuasively articulated, “expectation of privacy for sharing copyrighted [works] 20 through an online file-sharing network [is] simply insufficient to permit [Doe defendant] to avoid 21 having to defend against a claim of copyright infringement.” Arista Records, LLC v. Doe 3, 604 22 F.3d 110, 117–24 (2d Cir. 2010) (allowing discovery in similar circumstances). Moreover, there 23 is only one Doe defendant in this action, unlike other actions where attempts to identify multiple 24 Does at once were denied. See, e.g., Malibu Media, LLC v. John Does 1 though 10, Civ. No. 12- 25 3623-ODW (C.D. Cal. June 27, 2012) (Wright, J.) (allowing ex-parte discovery for first Doe 26 defendant); Discount Video Center, Inc. v. Does 1-5041, Civ. No. 11-2694 CW (N.D. Cal. Sept. 27 23, 2011) (Grewal, M.J.) (same). 28 2 1. Plaintiff immediately may serve Rule 45 subpoena on Wave Broadband to obtain 3 information to identify the Doe defendant, including the name, address, telephone 4 numbers, email addresses, and media access control addresses. The subpoena shall have 5 a copy of this Order attached. 6 2. Any information disclosed to the plaintiff in response to a Rule 45 subpoena may be 7 used by the plaintiff solely for the purpose of protecting plaintiff’s rights as set forth in its 8 complaint. 9 3. Plaintiff and any entity which receives a subpoena shall confer, if necessary, with 10 respect to the issue of payment for the information requested in the subpoena or for 11 For the Northern District of California For the reasons stated, this order GRANTS the motion as follows: 2 United States District Court 1 resolution of IP addresses which are not controlled by such entity, duplicate IP addresses 12 that resolve to the same individual, other IP addresses that do not provide the name and 13 other information requested of a unique individual, or for the entity’s internal costs to 14 notify its customers. 15 4. Any entity which receives a subpoena and elects to charge for the costs of production 16 shall provide a billing summary and any cost reports that serve as a basis for such billing 17 summary and any costs claimed by such entity. 18 5. If any entity subpoenaed pursuant to this order wishes to move to quash the subpoena, 19 it must do so before the return date of the subpoena, which shall be 28 days from the date 20 of service. 21 6. The subpoenaed entity shall preserve any subpoenaed information pending the 22 resolution of any timely-filed motion to quash. 23 24 IT IS SO ORDERED. 25 26 Dated: October 22, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?