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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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INGENUITY 13 LLC,

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For the Northern District of California

United States District Court

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No. C 12-04977 WHA

Plaintiff,
v.

ORDER GRANTING EX PARTE
MOTION FOR EXPEDITED
DISCOVERY

JOHN DOE,
Defendant.
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Plaintiff Ingenuity 13 LLC asserts claims of copyright infringement against an

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unidentified John Doe for downloading and distributing plaintiff’s copyrighted adult video

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without permission. Plaintiff claims to have identified the Internet Protocol address for the

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unidentified Doe and seeks permission to take limited, expedited discovery in order to obtain the

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name and contact information of the Doe associated with that IP address.

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Rule 26(d) allows a court to authorize early discovery before the Rule 26(f) conference

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where it is in the interests of justice. When the identity of defendant is not known before a

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complaint is filed, the plaintiff “should be given an opportunity through discovery to identify the

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unknown defendants unless it is clear that discovery would not uncover the identities, or that the

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complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980). Courts have examined whether (1) the Doe defendant is identified with sufficient

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specificity that the court can determine that the defendant is a real person who can be sued in

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federal court, (2) plaintiff has taken steps to locate and identify the defendant, (3) the action can

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withstand a motion to dismiss, and (4) the discovery is likely to lead to identifying the

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information that will permit service of process. AF Holdings LLC v. John Doe, No. Civ. 124218

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WHA (N.D. Cal. Sept. 5, 2012) (Alsup, J.).

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Plaintiff has shown good cause for limited, expedited discovery into the identify of Doe

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defendant. Plaintiff has alleged that it is the exclusive rights holder to the copyrighted video

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(Compl. ¶¶ 18–19, Exh. A). Plaintiff has gathered evidence of the Doe’s infringing activities

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(Hansmeier Decl. ¶¶ 14–27). There is evidence that Doe used an online peer-to-peer media

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distribution system, BitTorrent, to download plaintiff’s copyrighted video and distribute

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plaintiff’s copyrighted video to third parties (id. ¶ 22–27). Plaintiff’s agent downloaded the

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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

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For the Northern District of California

United States District Court

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procedures designed to ensure that the information gathered about Doe was accurate (id. ¶ 16).

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Plaintiff has identified the ISP that provided Internet access to Doe as Wave Broadband (id. ¶¶

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24, 28). Based on the IP address, plaintiff pleads that defendant resides in or committed

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copyright infringement in California (Compl. ¶ 6). When presented with the IP address and the

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date and time of infringing activity, Wave Broadband should be able to identify the name and

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address of Doe defendant because that information is contained in the ISP’s subscriber activity

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log files (Hansmeier Decl. ¶ 22). Plaintiff’s request for discovery of Doe’s identity is not

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prejudicial because the request is narrowly tailored to basic contact information. As the Second

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Circuit has persuasively articulated, “expectation of privacy for sharing copyrighted [works]

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through an online file-sharing network [is] simply insufficient to permit [Doe defendant] to avoid

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having to defend against a claim of copyright infringement.” Arista Records, LLC v. Doe 3, 604

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F.3d 110, 117–24 (2d Cir. 2010) (allowing discovery in similar circumstances). Moreover, there

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is only one Doe defendant in this action, unlike other actions where attempts to identify multiple

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Does at once were denied. See, e.g., Malibu Media, LLC v. John Does 1 though 10, Civ. No. 12-

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3623-ODW (C.D. Cal. June 27, 2012) (Wright, J.) (allowing ex-parte discovery for first Doe

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defendant); Discount Video Center, Inc. v. Does 1-5041, Civ. No. 11-2694 CW (N.D. Cal. Sept.

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23, 2011) (Grewal, M.J.) (same).

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1. Plaintiff immediately may serve Rule 45 subpoena on Wave Broadband to obtain

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information to identify the Doe defendant, including the name, address, telephone

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numbers, email addresses, and media access control addresses. The subpoena shall have

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a copy of this Order attached.

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2. Any information disclosed to the plaintiff in response to a Rule 45 subpoena may be

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used by the plaintiff solely for the purpose of protecting plaintiff’s rights as set forth in its

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complaint.

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3. Plaintiff and any entity which receives a subpoena shall confer, if necessary, with

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respect to the issue of payment for the information requested in the subpoena or for

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For the Northern District of California

For the reasons stated, this order GRANTS the motion as follows:

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United States District Court

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resolution of IP addresses which are not controlled by such entity, duplicate IP addresses

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that resolve to the same individual, other IP addresses that do not provide the name and

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other information requested of a unique individual, or for the entity’s internal costs to

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notify its customers.

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4. Any entity which receives a subpoena and elects to charge for the costs of production

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shall provide a billing summary and any cost reports that serve as a basis for such billing

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summary and any costs claimed by such entity.

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5. If any entity subpoenaed pursuant to this order wishes to move to quash the subpoena,

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it must do so before the return date of the subpoena, which shall be 28 days from the date

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of service.

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6. The subpoenaed entity shall preserve any subpoenaed information pending the

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resolution of any timely-filed motion to quash.

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IT IS SO ORDERED.

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Dated: October 22, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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