Xilinx, Inc. v. DOES 1 through 100, inclusive

Filing 7

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF XILINX, INC.'S EX PARTE MOTION FOR EXPEDITED DISCOVERY by Judge Patricia V. Trumbull granting in part and denying in part 5 Motion for Expedited Discovery (pvtlc2, COURT STAFF) (Filed on 8/27/2010)

Xilinx, Inc. v. DOES 1 through 100, inclusive

Doc. 7

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 XILINX, INC., UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

) ) Plaintiff, ) ) v. ) ) DOES 1 THROUGH 10, ) ) Defendants. ) __________________________________ )

Case No. 10-03244 PVT ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF XILINX, INC.'S EX PARTE MOTION FOR EXPEDITED DISCOVERY [Docket No. 5]

Plaintiff Xilinx, Inc. moves for leave to conduct expedited discovery prior to the Rule 26 conference. ("Xilinx"). Specifically, plaintiff Xilinx moves to serve Doe Defendants' Internet Service Providers with subpoenas pursuant to Rule 45 to determine their true identities. Plaintiff Xilinx is a semiconductor company that offers certain software in preengineered hardware blocks. (known as "IP cores"). Customers develop their own designs by choosing specific IP cores. As a general matter, plaintiff Xilinx has developed special encryption software to protect the IP cores. And plaintiff Xilinx has registered two versions of its software with the U.S. Copyright Office. Plaintiff Xilinx alleges that the Does Defendants have obtained copies of its special encryption software and related instructions and publicly posted them on a Usenet newsgroup known as "comp.arch.fpga." ORDER, page 1
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

On July 23, 2010, plaintiff Xilinx filed a complaint against the Does Defendants alleging claims, including copyright infringement and a violation of the Digital Millennium Copyright Act. To date, plaintiff Xilinx has been unable to determine the true identities of the Does Defendants. It has determined their Host IP addresses only. "A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)B), or when authorized by these rules, by stipulation, or by court order." Fed. R. Civ. P. 26(d). However, "a court may order pre-conference discovery upon a showing of good cause." UMG Recordings, Inc., et al. v. John Doe, 2008 WL 4104207 *1 (N.D. Cal.)(citing Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-276 (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. Here, plaintiff Xilinx does not know the true identities of the Does Defendants, only their Host IP addresses. The court finds that it is appropriate to allow plaintiff Xilinx to conduct discovery to determine their true identities. Therefore, plaintiff Xilinx has shown good cause to obtain discovery in advance of the Rule 26 conference. Plaintiff Xilinx proposes to obtain the following discovery: all logs, records, data, documentation, activity history and other information containing the names, current and permanent addresses, telephone numbers, email addresses, and posting Host IP addresses ("subscriber information') for the persons responsible for the user or account name "doomsten" and/or associated with the email address [e-mail]. As in UMG Recordings, Inc., et al. v. John Doe, 2008 WL 4104207 *2, "the court agrees that documents identifying John Doe's name, current and permanent address, e-mail address . . . will permit [the plaintiff] to identify and serve John Doe." However, discovery related to "activity history" and any "other information" is too broad. Moreover, there is no basis to obtain Does Defendants' telephone number. Id. Therefore, plaintiff Xilinx may serve Rule 45 subpoenas on Does Defendants' Internet Service Providers to obtain their names, addresses and email addresses in advance of the Rule 26 conference. Accordingly, plaintiff Xilinx's ex parte motion is granted ORDER, page 2

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

in part and denied in part. IT IS SO ORDERED. Dated: August 27, 2010 ____________________________ PATRICIA V. TRUMBULL United States Magistrate Judge

ORDER, page 3