MCGIP, LLC v. Does 1-49

Filing 7

ORDER GRANTING 4 EX PARTE MOTION FOR EXPEDITED DISCOVERY. Signed by Judge Jeremy Fogel on April 4, 2011. (jflc3, COURT STAFF) (Filed on 4/22/2011)

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1 2 **E-Filed 4/22/2011** 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 MCGIP LLC, Case Number 05:11-cv-01801 JF/HRL 9 Plaintiff, 10 11 v. DOES 1-49, 12 ORDER1 GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY [RE: Doc. No. 4] Defendants. 13 14 15 Plaintiff MCGIP, LLC asserts claims for copyright infringement pursuant to 17 U.S.C. § 16 101 et seq., and for civil conspiracy. It claims to have identified the Internet Protocol (“IP”) 17 addresses of the allegedly infringing Doe defendants, and seeks permission to take limited, 18 expedited discovery in order to obtain the names and contact information of the individuals 19 associated with those addresses. MCGIP asks the Court to allow it to serve subpoenas on certain 20 Internet Service Providers (“ISPs”) to obtain information identifying the Doe defendants so that 21 it can complete service of process. 22 As discussed below, MCGIP has demonstrated that: (1) the Doe defendants are real 23 people who may be sued in federal court; (2) it has attempted unsuccessfully to identify the Doe 24 defendants prior to filing this motion; (3) its infringement and civil conspiracy claims against the 25 Doe defendants could survive a motion to dismiss; and (4) there is a reasonable likelihood that 26 service of the proposed subpoenas on the ISPs will lead to information identifying the Doe 27 28 1 This disposition is not designated for publication and may not be cited. Case No. 05:11-cv-001801 JF/HRL ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY (JFLC3) 1 defendants. Accordingly, the Court finds that good cause exists to allow MCGIP to engage in 2 this preliminary discovery. 3 I. BACKGROUND 4 MCGIP is the exclusive licensee for the reproduction and distribution rights of an 5 allegedly copyrighted work. Complaint ¶¶ 5, 18-20. According to MCGIP, the Doe defendants 6 illegally reproduced and distributed the work to numerous third parties through a peer-to-peer 7 file sharing network. Because the file sharing network used by the Doe defendants is partially 8 anonymous, MCGIP claims not to know the defendants’ names and contact information, and as a 9 result, it is unable to effect service of process on them. However, MCGIP has been able to 10 identify the IP addresses assigned to each of the Doe defendants and the date and time that each 11 defendant allegedly infringed on MCGIP’s copyrighted work. Compl. Ex. A. MCGIP also has 12 identified the ISP for each of the IP addresses and seeks leave to serve a third-party subpoena on 13 each ISP in order to obtain the names and contact information of the alleged infringers. 14 15 II. DISCUSSION A. Legal Standard 16 Fed. R. Civ. P. 26(d) allows a court to authorize early discovery before the Rule 26(f) 17 conference where it is convenient for the parties and witnesses and in the interests of justice. 18 Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good cause” 19 for the early discovery. See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 20 4055667, at *2 (N.D. Cal. Oct. 15, 2010). When the identities of defendants are not known 21 before a complaint is filed, a plaintiff “should be given an opportunity through discovery to 22 identify the unknown defendants unless it is clear that discovery would not uncover the 23 identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 24 F.2d 637, 642 (9th Cir. 1980). In evaluating whether a plaintiff establishes good cause for 25 attempting to learn the identity of Doe defendants through early discovery, courts examine 26 whether plaintiff (1) has identified the Doe defendants with sufficient specificity that the court 27 can determine that the defendants are a real person who can be sued in federal court, (2) has 28 recounted the steps it has taken to locate and identify the defendant, (3) has demonstrated that 2 Case No. 05:11-cv-001801 JF/HRL ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY (JFLC3) 1 the action can withstand a motion to dismiss, and (4) has proved that the discovery is likely to 2 lead to identifying the information that will permit service of process. Columbia Ins. Co. v. 3, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). 4 B. Plaintiff Has Shown Good Cause 5 Here, MCGIP has made a sufficient showing with respect to each of these four factors. It 6 has identified the Doe defendants with sufficient specificity by submitting a chart listing each of 7 the defendants by IP address and the date of the alleged infringing conduct. See Compl. Ex. A. 8 It also has described the steps its has taken to locate and identify the Doe defendants by 9 investigating and collecting data on unauthorized distribution of copies of the work on 10 BitTorrent-based peer-to-peer networks. Hansmeier Declaration ¶¶ 12-20. Its complaint pleads 11 the essential elements of claims for copyright infringement and civil conspiracy against Doe 12 defendants. Compl. ¶¶ 18-39. Finally, the proposed subpoena requests seek information from 13 each ISP sufficient to identify the Doe defendant affiliated with a particular IP address, including 14 the defendant’s name, address, telephone number, email address, and media access control 15 address. 16 The Court concludes that MCGIP thus has demonstrated good cause exists to conduct 17 early discovery to identify the Doe defendants, Semitool, Inc. v. Tokyo Electron Am., Inc., 208 18 F.R.D. 273, 275-77 (N.D. Cal. 2002), and that permitting MCGIP to engage in this limited, early 19 discovery is consistent with Rule 26(d). 20 If MCGIP identifies new entities that it believes possess similarly discoverable 21 information, it may submit a declaration detailing the four requirements discussed above along 22 with a proposed order consistent with the parameters articulated in this Order. 23 III. CONCLUSION 24 For the reasons stated above, the Court GRANTS the motion as follows: 25 1. IT IS HEREBY ORDERED that Plaintiff immediately may serve Rule 45 subpoenas 26 on the ISPs listed in exhibit A to the complaint in order to obtain information to identify each 27 Doe defendant, including the name, address, telephone numbers, email addresses, and media 28 access control addresses. Each subpoena shall have a copy of this Order attached. 3 Case No. 05:11-cv-001801 JF/HRL ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY (JFLC3) 1 2. IT IS FURTHER ORDERED that the ISPs will have thirty (30) days from the date of 2 service upon them to serve the subscribers of the IP addresses with a copy of the subpoena and a 3 copy of this Order. The ISPs may serve the subscribers using any reasonable means, including 4 written notice sent to the subscriber’s last known address, transmitted either by first-class mail or 5 via overnight service. 6 3. IT IS FURTHER ORDERED that subscribers shall have thirty (30) days from the date 7 of service upon them to file any motions in this court contesting the subpoena (including a 8 motion to quash or modify the subpoena). If that period lapses without a subscriber contesting 9 the subpoena, the ISPs shall have ten days to produce the information responsive to the subpoena 10 11 12 13 to Plaintiff. 4. IT IS FURTHER ORDERED that the subpoenaed entity shall preserve any subpoenaed information pending the resolution of any timely-filed motion to quash. 5. IT IS FURTHER ORDERED that any ISP that receives a subpoena pursuant to this 14 order shall confer with Plaintiff and shall not assess any charge in advance of providing the 15 information requested in the subpoena. Any ISP that receives a subpoena and elects to charge for 16 the costs of production shall provide a billing summary and cost reports that serve as a basis for 17 such billing summary and any costs claimed by such ISP. 18 19 6. IT IS FURTHER ORDERED that Plaintiff shall serve a copy of this Order along with any subpoenas issued pursuant to this order to the necessary entities. 20 7. IT IS FURTHER ORDERED that any information disclosed to Plaintiff in response to 21 a Rule 45 subpoena may be used by Plaintiff solely for the purpose of protecting Plaintiff's rights 22 as set forth in its complaint. 23 24 IT IS SO ORDERED. 25 DATED: 4/22/2010 __________________________________ JEREMY FOGEL United States District Judge 26 27 28 4 Case No. 05:11-cv-001801 JF/HRL ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY (JFLC3)

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