Dallas Buyers Club LLC v. Doe-73.170.188.3

Filing 10

ORDER Re Plaintiff's Motion to Take Early Discovery by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT STAFF) (Filed on 3/21/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DALLAS BUYERS CLUB LLC,
Plaintiff,

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United States District Court
Northern District of California

ORDER RE PLAINTIFF'S MOTION TO
TAKE EARLY DISCOVERY

v.
DOE-73.170.188.3,

Re: Dkt. No. 5

Defendant.

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Case No. 16-cv-01168-EDL

On March 9, 2016, Plaintiff filed this copyright infringement action, identifying Defendant

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by an internet protocol (“IP”) address only. On March 10, 2016, Plaintiff filed a motion for leave

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to serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Comcast Cable for records

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that establish the “identity of the subscriber and account holder assigned the IP address used by

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defendant, and for such further information as may be needed to specifically identify the Doe

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defendant.”

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

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

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

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

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

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

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discovery to identify doe defendants, courts consider whether:

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(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
motion to dismiss; and (4) the plaintiff has demonstrated that there is

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a reasonable likelihood of being able to identify the defendant
through discovery such that service of process would be possible.

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OpenMind Solutions, Inc. v. Does 1–39, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (citing
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Columbia Ins. Co.v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999)).
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Here, although it appears from Plaintiff’s supporting memorandum that good cause can be
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established, Plaintiff has not filed any evidence in support of its motion, such as a declaration
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pursuant to 28 U.S.C. § 1746 or a verified complaint. See James v. Oakland Police Dep't, 2015
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WL 5680919, at *3 (N.D. Cal. Sept. 28, 2015) (Illston, J.) (verified complaint signed under
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penalty of perjury and based on personal knowledge, and not purely belief, is admissible
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evidence); OpenMind, 2011 WL 4715200, at *2-*5 (granting a motion for early discovery of the
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identity of a defendant identified by an IP address that was supported by a declaration from the
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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
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to file a declaration or other evidence showing that good cause exists for its motion within one
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week of this order.
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IT IS SO ORDERED.
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Dated: March 21, 2016
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________________________
ELIZABETH D. LAPORTE
United States Magistrate Judge

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