Hard Drive Productions, Inc. v. Does 1-118

Filing 6

Ex Parte Application For Leave to Take Expedited Discovery filed by Hard Drive Productions, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Attachment 1 to Exhibit B, # 4 Attachment 2 to Exhibit B)(Gibbs, Brett) (Filed on 4/1/2011) Modified on 4/4/2011 (cjl, COURT STAFF).

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Hard Drive Productions, Inc. v. Does 1-118 Doc. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brett L. Gibbs, Esq. (SBN 251000) Steele Hansmeier PLLC. 38 Miller Avenue, #263 Mill Valley, CA 94941 415-325-5900 blgibbs@wefightpiracy.com Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION HARD DRIVE PRODUCTIONS, INC., ) ) Plaintiff, ) v. ) ) DOES 1-118, ) ) Defendants. ) ) ____________________________________) No. C-11-01567-LB PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY PLAINTIFF'S EX PARTE APPLICATION FOR, AND MEMORANDUM OF LAW IN SUPPORT OF, LEAVE TO TAKE DISCOVERY PRIOR TO RULE 26(f) CONFERENCE Plaintiff Hard Drive Productions, Inc., by and through its undersigned counsel, and pursuant to Federal Rules of Civil Procedure ("FRCP") 26 and 45, hereby moves this Court ex parte for an Order permitting Plaintiff to take limited discovery prior to the FRCP 26(f) conference. Plaintiff's application is in accordance with the Court's Local Rule ("L.R.") 7-10, as it is authorized under FRCP 26(d) and 45. Plaintiff requests a hearing, or decision without hearing, on this application as soon as possible. In the alternative, and in light of the Court's general resistance to ex parte applications (see L.R. 7-10), Plaintiff's request may be viewed as a Motion for Administrative Relief for Leave to Take Immediate Discovery pursuant to L.R. 7.11. See UMG Recordings v. Does 1-4, 64 Fed. R. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Serv.3d 305 (Chen) (N.D. Cal. March 6, 2006). Either way, the request is the same: Plaintiff asks for expedited discovery now in order to later name Doe Defendants in this case. I. INTRODUCTION Plaintiff Hard Drive Productions, Inc. filed this action to stop Defendants from reproducing and distributing to others over the Internet unauthorized copies of it content (hereinafter "the Works"), and to pursue monetary damages from Defendants. Using so-called "peer-to-peer" (hereinafter "P2P") file "swapping" networks, Defendants' copyright infringements allow them and untold others to unlawfully obtain and distribute for free and without Plaintiff's permission the copyrighted Works that Plaintiff has invested substantial sums of money to create. Plaintiffs are suing Defendants as Doe Defendants because Defendants committed their infringement under the cover of Internet Protocol (hereinafter "IP") addresses, as opposed to using their actual names. Plaintiff has identified Doe Defendants' IP addresses (as well as other pertinent information), and attached this list to the Complaint as Exhibit A. Plaintiff seeks leave of the Court to serve limited discovery prior to a Rule 26(f) conference on several enumerated non-party Internet Service Providers ("ISPs") solely to determine the true identities of Doe Defendants that Plaintiff will fully identify during the course of this litigation, as Plaintiff's infringement prevention efforts are on-going and continuing. The only way that Plaintiff can determine Defendant's actual names is from the ISPs to which Defendants subscribe and from which Defendants obtain Internet access. This information is readily available to the ISPs from documents they keep in the regular course of business, and getting it is of minimal effort to them. II. BACKGROUND This request is far from unique. Granting applications such as these is commonplace. Over the past decade, federal district courts throughout the Ninth Circuit and the United States, including this Court, have freely granted expedited discovery in Doe Defendant lawsuits with factually 2 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interchangeable scenarios.1 In fact, Your Honor has personally encountered these ex parte applications, and, in all cases known to counsel, granted the plaintiff's applications, allowing them to serve the much-needed subpoenas on the ISPs. See Collins, Inc. v. Does 1-1219, 97 U.S.P.Q.2D (BNA) 1667 (N.D. Cal. 2010) (Beeler); Zoosk Inc. v. Does 1-25, 2010 U.S. Dist. LEXIS 134292, (N.D. Cal. 2010) (Beeler) (discussed more fully below). Generally, as Your Honor understands, in these types of cases, copyright holder plaintiffs use information similar to that gathered by Plaintiff in the instant case as the basis for their proposed subpoenas to the ISPs. As evidenced by the various court opinions, such information is sufficient for such expedited subpoenas. Through the information they gather from the ISPs via these subpoenas, the plaintiffs are able to fully "identify" i.e. retrieve name, address, telephone number, e-mail address, and Media Access Control (hereinafter "MAC") information each P2P network user suspected of violating the plaintiff's copyright. Usually, in the interest of due process, the court will order the ISP to adequately notify the network user whose contact information has been turned over to the plaintiff that such action has occurred. Once the plaintiff has a doe defendant's contact information, the defendant will be formally named in the suit, service of process will be effectuated, and the case will be allowed to proceed as usual. (See Declaration of Brett L. Gibbs (hereinafter "Gibbs Decl.") 4, Exhibit B to this Application). All of the district courts that have been presented 1 See, e.g., UMG Recordings, 64 Fed. R. Serv.3d 305; Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999); Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp.2d 1 (D.D.C. 2007); Columbia Pictures Industries, Inc. v. John Doe (67.123.19.140), Case No. C-04-5243 (N.D. Cal.) (Hamilton); Rocker Mgmt. LLC v. John Does, No. 03-MC33 2003 WL 22149380 (N.D. Cal 2003); UMG Recordings, Inc. v. John Doe, 2008 U.S. Dist. LEXIS 79087, Case No. 08-1193 (N.D. Cal. 2008) (Armstrong); UMG Recordings, Inc. v. John Doe, 2008 U.S. Dist. LEXIS 92788, Case No. 081038 (N.D. Cal. 2008) (Armstrong); Collins, Inc. v. Does 1-1219, 97 U.S.P.Q.2D (BNA) 1667 (N.D. Cal. 2010) (Beeler); IO Group, Inc. v. Does 1-65, 2010 U.S. Dist. LEXIS 114039, Case No. 10-4377 (N.D. Cal. 2010) (Conti); Zoosk Inc. v. Does 1-25, 2010 U.S. Dist. LEXIS 134292, (N.D. Cal. 2010) (Beeler); Texas Guaranteed Student Loan Corp. v. Deepinder Dhindsa, 2010 U.S. Dist. LEXIS 65753, Case No. 10-00335 (E.D. Cal. 2010) (Oberto); Arista Records, Inc., et al., v. Does 1-12, 2008 U.S. Dist. LEXIS 82548, 08-CV-1242 (E.D. Cal.) (GSA); Metro-GoldwynMayer Pictures, Inc. v. Does 1-2, Case No. 05-CV-0761-B (S.D. Cal.) (POR); Voltage Pictures, LLC v. Does, Case No. 1:10-cv-00873-RMU (D.D.C.); Metro-Goldwyn-Mayer Pictures, Inc. v. Does 1-10, Case No. 04-2005 (D.D.C.) (JR); Allcare Dental Management, LLC v. Zrinyi, 2008 U.S. Dist. LEXIS 84015, Case No. 08-407 (Idaho 2008) (Wimmill). 3 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with this issue have understood the importance of allowing the plaintiffs to identify the alleged violators in these actions. See id. Plaintiff respectfully requests that this Court follow the well-established precedent, and grant this application for leave to take expedited discovery against those ISPs listed in Exhibit A to the Complaint filed in this action together with various other ISPs operating both within and outside the State of California that Plaintiff later discovers, during the course of this litigation, where the actual entities providing Doe Defendants with online services and/or network access, and all of their respective subsidiaries, parent companies, and affiliates who may possess identifying data for the Doe Defendants. III. FACTS Doe Defendants, without authorization, used an online P2P media distribution system to download Plaintiff's copyrighted works and distribute Plaintiff's copyrighted works to the public, including making Plaintiff's copyrighted works available for distribution to others (See Compl.). Defendants operated under the cover of network addresses when they swarmed and distributed Plaintiff's copyrighted works. As such, Plaintiff is unaware of Doe Defendants actual names. (See Declaration of Peter Hansmeier (hereinafter "Hansmeier Decl.") 21-22, Exhibit A to this Application). As referenced above, Plaintiff has identified each Doe Defendant by a unique IP address, assigned to him/her by his/her ISP on the date and at the time of the Doe Defendant's infringing activity. (See Id. 15). Plaintiff, by and through its investigators, also made a copy of substantial portions of the copyrighted work that each Defendant unlawfully distributed or made available for distribution through the file sharing networks, and confirmed that such files contained the work that was copyrighted by Plaintiff. (See Id. 19). A technician collected this data through specific systems and procedures designed to ensure that the information gathered on each Doe Defendant was accurate. (See Id. 12). 4 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By using Media Copyright Group, LLC's ("MCG") proprietary file sharing forensic software to capture the unique IP address of each Doe Defendant, Plaintiffs have been able to identify certain ISPs that provided Internet access and unique IP addresses to each Doe Defendant. (See Id. 1517). When provided with a Doe Defendant's IP address and the date and time of the infringing activity, an ISP can accurately identify the Doe Defendant (i.e. provide Plaintiff with the Doe Defendant's necessary contact information) because such information is contained in the ISP's subscriber activity log files. (See Id. 21-22). In light of the fact that infringement of Plaintiff's Works is ongoing, Plaintiff will continue to monitor torrent-based infringement of the Works, and, by this application, seeks the ability to pursue claims for copyright infringement against lateridentified infringers. (See Id. 24; see also Gibbs Decl. 3). In Plaintiff's case, time for discovery is of the essence. (See Gibbs Del. 6). Typically, ISPs keep log files of subscriber activities for only limited periods of time before erasing the data. Sometimes this storage may only last for only weeks or even days. (See Id. 21-22). Some ISPs lease or otherwise allocate certain of their IP addresses to other unrelated, intermediary ISPs. (See Id. 23). These lessor ISPs, therefore, have no direct contractual or business relationship with the enduser. Because of this detachment, they are unable to identify the Doe Defendants through their logs on their own without the assistance of their intermediary ISPs that should be able to identify the Doe Defendants by reference to their own user logs and records working in conjunction with the lessor ISPs. (See Id. 23). IV. DISCUSSION 1. Legal Standard for Expedited Discovery Courts have wide discretion in organizing discovery. See Semitool v. Tokyo Electron America, Inc., et al., 208 F.R.D. 273 (N.D. Cal. 2002). Courts typically allow for expedited discovery "in the interests of justice" under Rule 26(d). See, e.g, Id.; Texas Guaranteed, 2010 U.S. 5 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dist. LEXIS 65753. Courts commonly find it "in the interests of justice" to allow accelerated discovery to identify doe defendants. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) ("...district court erred in dismissing [Plaintiff's] complaint against Doe simply because [Plaintiff] was not aware of Doe's identity at the time he filed the complaint."); Equidyne Corp. v. Does 1-21, 279 F.Supp. 2d 481, 483 (D. Del. 2003) (district court granted expedited discovery motion to allow the plaintiff to identify unknown defendants). In similarly situated copyright infringement actions brought by other motion picture studios, record companies, and producers against doe defendants, courts have consistently granted plaintiffs' motions for leave to take expedited discovery to serve subpoenas on ISPs to immediately obtain the identities of doe defendants prior to a Rule 26(f) conference. See Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp. 2d 1 (D.D.C. 2007) (plaintiff requests, and court allows, expedited Rule 45 subpoena service on Georgetown University to obtain identifying information including name, current and permanent addresses, telephone numbers, email addresses, and MACs of doe defendants). This Court's rulings have steadfastly followed this established rule. See, e.g., UMG Recordings, 64 Fed. R. Serv.3d 305; IO Group, Inc., 2010 U.S. Dist. LEXIS 114039; Zoosk Inc., 2010 U.S. Dist. LEXIS 134292. When the identity of a doe defendant is indeterminable at the time the complaint is filed, the plaintiff "should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds. Gillepsie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Based in part on Gillespie, a three-prong expedited-discovery-qualifying test was outlined by this Court in Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999). In order for a plaintiff to qualify for expedited discovery to identify nameless Internet users, the plaintiff must: (1) show whether the plaintiff can identify the missing party with sufficient specificity such that the Court can 6 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determine that the defendant is a real person or entity capable of being sued in federal court; (2) identify all previous steps taken to locate elusive defendant; and (3) establish that the suit could withstand a motion to dismiss. Seescandy.com, 185 F.R.D. at 578-578; see also Rocker Mgmt. LLC v. John Does, WL 22149380, Case No. 03-MC-33 (N.D. Cal. 2003) (court interprets and applies Seescandy.com standard in allowing limited discovery). In determining whether a plaintiff is entitled to expedited discovery in identifying a doe defendant, the district courts in the 9th Circuit implement an overarching "good cause" standard. See Semitool, 208 F.R.D. at 273, 276 (N.D. Cal. 2002). "Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." Id; see also UMG Recordings, 64 Fed. R. Serv.3d 305 (the Honorable Magistrate Judge Chen perfectly lays out all of the issues, analyzes the application of rules to facts, and concludes that the plaintiff is entitled to leave to take immediate discovery). 2. Plaintiff Satisfies the Three-Pronged Seescandy.com Test (a) Identifying Doe Defendants with Sufficient Specificity As required, Plaintiff has sufficiently identified the Doe Defendants through locating the unique IP address each Doe Defendant was assigned at the time of the unauthorized distribution of the copyrighted Works. Hansmeier Decl. 15-17; See also, e.g., Seescandy.com, 185 F.R.D. at 578580 (such information satisfies "sufficient specificity" prong). These Doe Defendants gained access to the Internet through their respective ISPs (undercover of an IP address) only by setting up an account with the various ISPs. Hansmeier Decl. 15-17. The ISPs can identify each Defendant by name through the IP address by reviewing its subscriber activity logs. See Id. 21-23. Thus, Plaintiff can show that all Defendants are "real persons" whose are known to the ISP and who can be sued in federal court. Plaintiff simply requests that this ex parte application be granted so that Plaintiff can match the IP address with its "real person" counterpart. 7 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the dots. (b) Previous Steps Taken by Plaintiff Plaintiff has exhausted all possible means to attempt to find the Doe Defendants' names, addresses, phone numbers, email addresses, and MAC addresses. Plaintiff lacks any other means to obtain the subpoenaed information expect from discovery through the ISPs themselves. Plaintiff has specifically identified the steps taken to identify Doe Defendants' identities. See Id. 12-20. Plaintiff has obtained each Doe Defendant's IP addresses and the date and time of the Defendant's infringing activities, have traced each IP address to specific ISPs, and has made copies of the Works each Defendant unlawfully distributed or made available for distribution. Id. 15-18. At this point, Plaintiff has obtained all of the necessary information it possibly can on each Doe Defendant without discovery from the ISPs. Plaintiff needs this limited information from the ISPs to simply connect (c) Whether Suit Would Survive a Motion to Dismiss If the Court denies this ex parte application, the Court would strike a fatal blow in Plaintiff's otherwise meritorious case. (See Gibbs Del. 2). Ascertaining the true identities of these copyright infringers is the only thing holding this case back from proceeding forward. (See Id. 4). Plaintiff has asserted a prima facie claim for direct copyright infringement in its Complaint that can withstand a motion to dismiss. Specifically, Plaintiff has alleged that: (a) it owns the exclusive reproduction and distribution rights, and exclusive rights under the copyright for the Works for which a valid application for registration has been filed, and (b) the Doe Defendants copied or distributed the copyrighted Works without Plaintiff's authorization. See Complaint. These allegations adequately state a claim for copyright infringement. See 17 U.S.C. 106(1)(3); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014-15 (9th Cir. 2001) ("Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. 8 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."); In re Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir. 2003). There is little question that the Doe Defendants violated Plaintiff's rights. Now Plaintiff simply must be allowed to identify who they are. 2. Plaintiff Satisfies the Semitool "Good Cause" Standard for Expedited Discovery As stated in Semitool, "Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." 208 F.R.D. at 276. Courts have wide discretion in discovery matters and in interpreting "good cause." See Id.; Qwest Comm. Int'l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz. 2001); Warner Bros., 527 F.Supp.2d at 2. In this case, good cause exists because knowing the true identities of the copyright violators, and thus allowing Plaintiff to carry forward with its case, outweighs negligible prejudice to the copyright violating Doe Defendants and the ISPs. Good cause exists here because ISPs typically retain user activity logs containing the information sought for only a limited period of time before erasing the data. (Hansmeier Decl. 2123: see Gibbs Del. 6). If that information is erased, Plaintiff will have no ability to fully identify the Doe Defendants, and thus will be unable to pursue a lawsuit protecting itself against their devious copyrighting tactics. Id. Where "physical evidence may be consumed or destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation," good cause exists for expedited discovery under FRCP 26(d). Qwest Comm., 213 F.R.D. at 419; see also Pod-Ners, LLC v. Northern Feed & Bean of Lucerne, LLC, 204 F.R.D. 675, 676 (D. Colo. 2002) (court allowed for expedited discovery where evidence would not be available to the plaintiff in the normal course). 9 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Put simply, Plaintiff may lose the ability to bring this suit without being able to timely serve the ISPs with subpoenas. Good cause also exists because Plaintiff's claim for copyright infringement presumes irreparable harm to copyright owner. See UMG Recordings, Inc. v. Doe, 2008 2008 U.S. Dist. LEXIS 79087 (N.D. Cal. 2008) (the Honorable Judge Armstrong noted that, "In Internet infringement cases, courts routinely find good cause exists to issue a Rule 45 subpoena to discover a Doe defendant's identity, prior to a Rule 26(f) conference, where a plaintiff makes a prima facie showing of infringement, there is no other way to identify the Doe defendant, and there is a risk an ISP will destroy its logs prior to the conference... This is because, in considering `the administration of justice,' early discovery avoids ongoing, continuous harm to the infringed party and there is no other way to advance the litigation."); also see Semitool, 208 F.R.D. at 277; Elvis Presley Enter., Inc. v. Passport Video, 349 F.3d 622, 631 (9th Circuit 2003). Not only will Plaintiff's suit will be fatally damaged if it is not allowed to be permitted to conduct expedited discovery, but Plaintiff's Works, Plaintiff's own unique copyrighted creations, will be devalued if the Court denies this motion. 3. Doe Defendants Have No Legitimate Expectation of First Amendment Privacy As the Honorable Magistrate Judge Chen pointed out in UMG Recordings, Doe Defendants who "open[ed] their computers to others through peer-to-peer sharing" and signed service agreements with ISPs that did not have privacy stipulations, "had little expectation of privacy." 64 Fed. R. Serv.3d at 305. The Doe Defendants here fall under this purview for the same reasons. The Doe Defendants are, at best, involved in quasi-speech, and Plaintiff's overriding interests in protecting its copyright overshadow any limited speech implications on the part of the Defendants. They have no legitimate expectation of privacy in the subscriber information they voluntarily provided to third-parties, i.e. the ISPs, much less in downloading and distributing copyrighted Works 10 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 without Plaintiff's permission. See Id.; see also Sony Music Entertainment, Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004) (court finds that "defendants have little expectations of privacy in downloading and distributing copyrighted songs without permission"); Interscope Records v. Does 1-14, 558 F.Supp.2d 1176, 1178 (D. Kan 2008); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001); U.S. v. Hambrick, 55 F.Supp.2d 504, 508 (W.D. Va. 1999), aff'd, 225 F.3d 656 (4th Cir. 2000). Doe Defendants copied and distributed the Works without authorization under the cover of their IP addresses, and, therefore, their conduct was not entirely anonymous. They still are identifiable by the ISPs. Using publicly available technology, the unique IP address assigned to each Defendant at the time of infringement can be readily identified. See Hansmeier Decl. 12-20. When Doe Defendants entered into a service agreement with the ISPs, they knowingly and voluntarily disclosed personal identification to it. As set forth above, this identification information is linked to the Doe Defendants' IP addresses at the time of infringement, and recorded in the ISPs' respective subscriber activity logs. Since Doe Defendants can, as a consequence, have no legitimate expectation of privacy in this information, this Court should grant Plaintiff leave to seek expedited discovery of their indentifying information. Absent such leave, Plaintiff will be unable to protect its copyright its copyrighted Works from continued infringement. Where federal privacy statutes authorize disclosure pursuant to a court order, courts have held that a plaintiff must make no more than a showing of relevance under the traditional standards of Rule 26. See Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987); see also In re Gren, 633 F.2d 825 n.3 (9th Cir. 1980) ("court order . . . [only requires] good faith showing that the consumer records sought are relevant.") Clearly, Plaintiff meets the relevance standard as fully described in this Memorandum, the attached Declaration, and the Complaint. // // 11 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Your Honor's Recent Opinions Have Supported Granting Plaintiff's Application In the past year, two cases came before Your Honor presenting the exact same dilemma that faces Plaintiff in this case. The plaintiffs in these two cases sued the doe defendants, but, like Plaintiff here, could not fully identify the doe defendants for purposes of naming them for the suit. Just like Plaintiff here, the plaintiffs in those cases could only identify the doe defendants through their IP addresses used in their alleged wrongful activities. All plaintiffs had the IP addresses when filing suit, but not the personal identifying information of the doe defendants. They needed the ISPs to supply that information. The cases appear indistinguishable. In each case, Your Honor granted the plaintiffs' ex parte applications for expedited discovery. In Zoosk Inc. v. Does 1-25, 2010 U.S. Dist. LEXIS 134292, (N.D. Cal. 2010) (Beeler), Your Honor found that in a situation where the plaintiff alleged, among other things, per se libel, "[w]hen the identity of defendants is not known before a complaint is filed, a plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." (internal quotations and citations omitted). The Court also used the good cause standard described above. (Id. at *5-6) All in all, Plaintiff, as demonstrated in the previous analysis, should be given a chance to identify the Doe Defendants because it is clear that Plaintiff's requested subpoenas to the ISPs would uncover the Doe Defendants' identities as discussed, the complaint lays out a per se case for copyright infringement, and Plaintiff fully demonstrates good cause. (See id.) Collins, Inc. v. Does 1-1219, 97 U.S.P.Q.2D (BNA) 1667 (N.D. Cal. 2010) (Beeler) presented an extremely similar situation to Plaintiff's. The only difference was that there were more Doe Defendants, and the Doe Defendants were not isolated to California in Collins. In Collins, the 12 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff names 1,219 Does that have unlawfully reproduced and distributed via P2P Internet sharing an adult film to which the plaintiff owned the exclusive copyrights. Just like in this case, because of the method of the Doe Defendants' elicit Internet reproduction and distribution, the plaintiff in Collins could only identify the Doe Defendants by their IP addresses when committing the infringing activities. As in this case, the plaintiff in Collins requested that the Court grant it leave to serve a Rule 45 third-party subpoena on each ISP concerning each IP address listed in the Exhibit A to the plaintiff's complaint. The plaintiff in Collins requested leave to subpoena the same identifying information of the Doe Defendants that Plaintiff requests here. In Collins, Your Honor runs down the same analysis as in Zoosk. Your Honor determines that the plaintiff "identified the Doe Defendants with sufficient specificity by submitting a chart listing each of Defendants by the IP address assigned to them on the day Plaintiff alleges the Defendant engaged in the infringing conduct." Collins, 97 U.S.P.Q.2D (BNA) 1667, *5-6. Plaintiff in this case has provided this such a chart listing IP addresses, dates, and ISPs. Second, Your Honor described the "adequate[]... steps taken to locate and identify the Doe Defendants." Id. at *6. Those "steps" included hiring a copyright firm to investigate and collect data from the targeted P2P websites helping to locate potential infringers. Id. Plaintiff has actually gone beyond the plaintiff in Collins by using a copyright firm with patented technology that can not only investigate these alleged acts of piracy, but also accurately trace these active infringers through a method that virtually eliminates the chances for false positives. See Hansmeier Decl. Ultimately, Your Honor grants the plaintiff's ex parte application for leave to take limited discovery in Collins. In the spirit of consistency and fairness, Plaintiff merely requests the same court order that was given to the plaintiffs in the above cases. // // 13 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION Plaintiff seeks leave to propound subpoenas on the variety of ISPs it has identified, and continues to identify as it continue to monitor torrent-based infringement of Plaintiff's Works, limited, immediate discovery sufficient to determine the Doe Defendants' true identities. To the extent that any ISP, in turn, identifies a different entity as the ISP providing network access and online services to the Doe Defendants, Plaintiff also seeks leave to serve, on any such later identified ISP, limited discovery sufficient to identify the Doe Defendant prior to the Rule 26 conference. Specifically, PLAINTIFF MOVES TO, UPON COURT AUTHORIZATION, SERVE WITHIN FIFTEEN (15) DAYS RULE 45 SUBPOENAS TO COMPEL LISTED ISPs, OR A FURTHER DISCOVERED RELEVANT SUBSIDIARY, TO IMMEDIATELY TURNOVER PERSONAL IDENTIFICATION INFORMATION IT CURRENTLY POSSESSES, AND MAY IDENTIFY IN THE FUTURE DURING THE COURSE OF THIS LITIGATION, FOR EACH IP ADDRESS LINKED TO EACH INDIVIDUAL DOE DEFENDANT SPECIFICALLY DESCRIBED IN THE ATTACHEMENT TO THE COMPLAINT, INCLUDING EVERY DOE DEFENDANT'S: TRUE NAME; ADDRESS; TELEPHONE NUMBER; E-MAIL ADDRESS; AND MEDIA ACCESS CONTROL ADDRESS. Plaintiff will only use this information to prosecute the claims made in its Complaint. Further, Plaintiff understands that the subpoenaed ISPs will be able to notify their subscribers that this information is being sought, and each Doe Defendant will have the opportunity to raise any 14 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 objections before this Court prior to the return date of the subpoena. Thus, to the extent that any Defendant wishes to object, he or she may do so. Put plainly, the factors weigh heavily in favor of compelling disclosure of the Doe Defendants' identifying information. Without disclosure of the Doe Defendants' identities, Plaintiff's litigation cannot proceed. To deny this motion would be to give those committing this online, peer-to-peer piracy carte blanche to repeat their infringing conduct. Permitting these acts would essentially render the federal copyright laws inapplicable to illegal Internet "sharing." Plaintiff prays that the Court recognize this, and Grant this Motion by entering the attached Proposed Order. Respectfully Submitted, HARD DRIVE PRODUCTIONS, INC., DATED: April 1, 2011 By: ____/s/ Brett L. Gibbs, Esq._______ Brett L. Gibbs, Esq. (SBN 251000) Steele Hansmeier PLLC. 38 Miller Avenue, #263 Mill Valley, CA 94941 blgibbs@wefightpiracy.com Attorney for Plaintiff 15 PLAINTIFF'S EX PARTE APPLICATION TO TAKE EXPEDITED DISCOVERY No. C-11-01567-LB

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