Megaupload Ltd v. Universal Music Group Inc

Filing 39

ORDER by Magistrate Judge Jacqueline Scott Corley denying 21 Motion for Discovery (ahm, COURT STAFF) (Filed on 1/25/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MEGAUPLOAD, LTD.,

No. 11-cv-6216 CW (JSC)

Northern District of California

United States District Court

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Plaintiff,
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v.
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UNIVERSAL MUSIC GROUP, INC. and
DOES 1 to 100, inclusive

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO TAKE
LIMITED DISCOVERY PRIOR TO
FED. R. CIV. P. 26(f) CONFERENCE
(Dkt. No. 21)

Defendants.

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Pending before the Court is Plaintiff’s Motion for Leave to Take Limited Discovery

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Prior to Fed. R. Civ. P. 26(f) Conference (“the Discovery Motion”). (Dkt. No. 21). Having

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considered the papers submitted by the parties, and having had the benefit of oral argument on

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January 23, 2012, the Court DENIES Plaintiff’s motion for the reasons set forth below.

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BACKGROUND
Plaintiff filed this case on December 12, 2011 claiming Misrepresentation of Copyright

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under 17 U.S.C. 512(f). (Dkt. No. 1 at ¶ 1). Plaintiff alleged that Universal Music Group,

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Inc. (“UMG”) caused YouTube and other internet service providers to remove Plaintiff’s

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promotional video (“the video”) from public access by means of knowingly false notices of

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copyright infringement pursuant to 17 U.S.C. 512(c)(3). (Dkt. No. 1 at ¶¶ 1, 17-24). On

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December 14, 2011, Plaintiff filed an ex parte Application for Temporary Restraining Order

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and Order to Show Cause Re: Preliminary Injunction, alleging immediate, irreparable and

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ongoing harm. (Dkt. No. 5. at 4-5). Two days later, Plaintiff acknowledged that the video

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was once again available to the public. (Dkt. No. 15 at 1:15-22). Accordingly, Plaintiff’s

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Application for Temporary Restraining Order and Order to Show Cause was denied as moot.

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(Dkt. No. 18).

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Plaintiff filed its Discovery Motion on December 27, 2011, by which it sought leave to

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file subpoenas on internet service providers and non-party UMG entities and document

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requests and interrogatories on defendant UMG. (Dkt. No. 21 at 1:20-23). Plaintiff claimed a

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need for expedited discovery to identify other UMG entities that should be substituted as

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defendants, and to prevent destruction of evidence. (Dkt. No. 21 at 12:21-13:28). The subject

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matter of the expedited discovery included documents and communications between any

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service provider and any UMG entity or any other person concerning the video or its removal

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from access by the public, and any agreement, term or procedure between any UMG entity

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and any website or service provider which was implicated in the removal or restoration of the

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video. (Dkt. No. 21 at 1:24-2:15).

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In a January 10, 2012 declaration by its General Counsel, UMG identified UMG

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Recordings, Inc. (“UMGR”) as the party which caused the video to be removed. (Dkt. No. 33-

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4 at ¶8). UMG also identified (but did not produce) a confidential agreement between UMGR

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and YouTube, which “permits UMGR to block or remove certain videos displayed through

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YouTube.” (Dkt. No. 33-4 at ¶5). UMG further indicated that it had placed a litigation hold

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on documents potentially relevant to this litigation, throughout all UMG entities. (Dkt. No.

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33-4 at ¶10). On January 20, 2012, Plaintiff voluntarily dismissed Defendant UMG from the

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case but has not attempted to amend its complaint to substitute or add UMGR as a defendant.

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(Dkt. No. 36).

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At oral argument on January 23, 2012, Plaintiff narrowed its proposed early discovery

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request. Plaintiff now seeks only the terms of the confidential agreement between UMGR and

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YouTube and “takedown” notices sent from UMGR to YouTube pursuant to that agreement,

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as well as any notices sent to any other internet service provider.

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DISCUSSION

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Federal Rule of Civil Procedure 26(f) requires the parties to a lawsuit filed in federal

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court to meet and confer on, among other things, a discovery plan. Fed. R. Civ. P. 26(f)(2).

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This Rule 26(f) conference must occur at least 21 days before the initial case management

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conference. Fed. R. Civ. P. 26(f)(1). “A party may not seek discovery from any source

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before the parties have conferred as required by Rule 26(f).” Fed. R. Civ. P. 26(d)(1). In

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addition, the parties are required to make certain initial disclosures to the opposing side

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without a formal discovery request. Fed. R. Civ. P. 26(a). In this case, the parties’ initial case

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management conference is scheduled for March 28, 2012. (Dkt. No. 4). Their last day to

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conduct their Rule 26(f) conference is March 7, 2012, and initial disclosures are due March

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21, 2012. (Id.) Plaintiff, however, does not want to wait until March. It asks the Court to

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jettison this process and instead allow it to immediately seek certain discovery from UMG and

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others.

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A court may authorize discovery before the Rule 26(f) conference for the parties’

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convenience and in the interests of justice. Fed. R. Civ. P. 26(d)(1). Courts within the Ninth

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Circuit apply a “good cause” standard to determine whether to permit such discovery. Apple

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Inc. v. Samsung Electronics Co., Ltd., No. 11-CV-01846-LHK, 2011 WL 1938154 at *1

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(N.D. Cal. May 18, 2011); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273,

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276 (N.D. Cal. 2002). Good cause exists where “the need for expedited discovery, in

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consideration of the administration of justice, outweighs the prejudice to the responding

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party.” Semitool, 208 F.R.D. at 276. The court must perform this evaluation based on the

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“entirety of the record” and the “reasonableness of the request in light of all the surrounding

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circumstances.” Facebook, Inc. v. Various, Inc., No. 11-cv-01805-SBA (DMR), 2011 WL

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2437433 at *2 (N.D. Cal. June 17, 2011); Semitool, 208 F.R.D. at 275. In determining

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whether good cause justifies expedited discovery, courts commonly consider factors

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including: “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery

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requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the

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defendants to comply with the requests; and (5) how far in advance of the typical discovery

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process the request was made.” American LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063, 1067

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(C.D. Cal. 2009).

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Courts have permitted early discovery where defendants’ identities are unknown or

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defendants are known only by IP addresses or other anonymous online identifications,

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especially where information relating to the defendants’ identities is in the possession of non-

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defendant parties. See, e.g., UMG Recordings, Inc. v. Doe, No. 08-cv-1193-SBA, 2008 WL

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4104214 at *4 (N.D. Cal. Sept. 3, 2008). In such cases, the lawsuit cannot proceed unless the

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plaintiff is allowed early discovery because there is no defendant with whom the plaintiff can

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conduct the Rule 26(f) conference. Here, in contrast, Plaintiff named UMG as a defendant

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and Plaintiff is aware of at least one prospective defendant’s identity: UMG Recordings, Inc.,

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which UMG identified as the entity responsible for removing the video from YouTube. (Dkt.

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No. 33-4). Consequently, Plaintiff does not need expedited discovery to identify a defendant.

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Courts have also permitted early discovery when there is ongoing harm or the evidence

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sought is in danger of destruction or loss. UMG Recordings, 2008 WL 4104214 at *4;

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Capitol Records, Inc. v. Doe, 07-cv-1570-JM (POR), 2007 WL 2429830 (S.D. Cal. Aug. 24,

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2007). Here, Plaintiff’s application for a temporary restraining order and motion for a

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preliminary injunction have been dismissed, and Plaintiff concedes that there is no ongoing

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harm as its video is now available on YouTube and elsewhere. Furthermore, UMG has placed

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a litigation hold on relevant documents possessed by all UMG entities, and YouTube is also

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aware of the litigation and the need to preserve relevant evidence. (Dkt. No. 35). Therefore,

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Plaintiff has not demonstrated ongoing harm or likely destruction of evidence.

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At oral argument Plaintiff asserted that it should be allowed to take early discovery

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because it would be more efficient for the court and the parties. In particular, it would enable

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Plaintiff to identify all relevant defendants prior to the initial case management conference

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thus reducing the need for later amendments of pleadings. Further, such early discovery

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would facilitate Plaintiff’s analysis of what claims, if any, it can make arising from the brief

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removal of its video from the internet. The problem with Plaintiff’s argument, however, is

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that it applies to nearly every case. It would probably always be more efficient—at least from

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a plaintiff’s perspective—to obtain discovery from parties and non-parties before the Rule

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26(f) conference; indeed, it would be helpful to a plaintiff to be able to obtain discovery

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before the plaintiff even files suit. Nonetheless, the federal rules, adopted after much study

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and thought, dictate a different procedure. As Plaintiff has not articulated any persuasive

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reason for deviating from that procedure in this case, its motion must be denied.

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CONCLUSION

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As Plaintiff has not demonstrated good cause for expedited discovery, Plaintiff’s

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motion is DENIED.
This Order disposes of Dkt. No. 21.

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Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: January 25, 2012
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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