Cobbler Nevada, LLC v. Doe-73.15.228.64

Filing 12

ORDER Re Plaintiff's Motion for Leave to Take Early Discovery by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT STAFF) (Filed on 12/11/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
COBBLER NEVADA, LLC,

7

Plaintiff,

8
v.

9

DOE-73.15.228.64,

10

Defendant.

11
United States District Court
Northern District of California

Case No. 15-cv-05313-EDL
ORDER RE PLAINTIFF'S MOTION
FOR LEAVE TO TAKE EARLY
DISCOVERY
Re: Dkt. Nos. 6, 9

On November 19, 2015, Plaintiff filed this copyright infringement action, identifying

12
13

Defendant by an internet protocol (“IP”) address only. On November 20, 2015, Plaintiff filed a

14

motion for leave to serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on

15

Defendant’s internet service provider (“ISP”)1 that is “limited to the name and address of the

16

individual/individuals associated with the IP address named as defendant.”

17

Federal Rule of Civil Procedure 26(d)(1) requires a court order for discovery if it is

18

requested prior to a Rule 26(f) conference between the parties. Generally, a “good cause” standard

19

applies to determine whether to permit such early discovery. Semitool, Inc. v. Tokyo Electron

20

Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for

21

expedited discovery, in consideration of the administration of justice, outweighs the prejudice of

22

the responding party.” Id. To determine whether there is “good cause” to permit expedited

23

discovery to identify doe defendants, courts consider whether:

24

(1) the plaintiff can identify the missing party with sufficient
specificity such that the Court can determine that defendant is a real
person or entity who could be sued in federal court; (2) the plaintiff
has identified all previous steps taken to locate the elusive
defendant; (3) the plaintiff’s suit against defendant could withstand a

25
26
27
1

28

Plaintiff identifies Cox Communications as Defendant’s ISP in its motion. However, throughout
its supporting memorandum, Plaintiff identifies Comcast Cable as Defendant’s ISP.

1
2

motion to dismiss; and (4) the plaintiff has demonstrated that there is
a reasonable likelihood of being able to identify the defendant
through discovery such that service of process would be possible.
OpenMind Solutions, Inc. v. Does 1–39, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (citing

3
Columbia Ins. Co.v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999)).
4
Here, although it appears from Plaintiff’s supporting memorandum that good cause can be
5
established, Plaintiff has not filed any evidence in support of its motion, such as a declaration
6
pursuant to 28 U.S.C. § 1746 or a verified complaint. See James v. Oakland Police Dep't, 2015
7
WL 5680919, at *3 (N.D. Cal. Sept. 28, 2015) (Illston, J.) (verified complaint signed under
8
penalty of perjury and based on personal knowledge, and not purely belief, is admissible
9
evidence); OpenMind, 2011 WL 4715200, at *2-*5 (granting a motion for early discovery of the
10
identity of a defendant identified by an IP address that was supported by a declaration from the
11
United States District Court
Northern District of California

plaintiff’s counsel establishing that good cause existed for the motion); MCGIP, LLC v. Does 112
149, 2011 WL 3607666, at *2 (N.D. Cal. Aug. 15, 2011) (same). Accordingly, Plaintiff is ordered
13
to file a declaration or other evidence showing that good cause exists for its motion and clarifying
14
the identity of Defendant’s ISP within one week of this order.
15
IT IS SO ORDERED.
16
Dated: December 11, 2015
17
18
________________________
ELIZABETH D. LAPORTE
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
28
2