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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**E-Filed 4/22/2011**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MCGIP LLC,

Case Number 05:11-cv-01801 JF/HRL

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Plaintiff,

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v.
DOES 1-49,

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ORDER1 GRANTING EX PARTE
MOTION FOR EXPEDITED
DISCOVERY
[RE: Doc. No. 4]

Defendants.

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Plaintiff MCGIP, LLC asserts claims for copyright infringement pursuant to 17 U.S.C. §

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101 et seq., and for civil conspiracy. It claims to have identified the Internet Protocol (“IP”)

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addresses of the allegedly infringing Doe defendants, and seeks permission to take limited,

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expedited discovery in order to obtain the names and contact information of the individuals

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associated with those addresses. MCGIP asks the Court to allow it to serve subpoenas on certain

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Internet Service Providers (“ISPs”) to obtain information identifying the Doe defendants so that

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it can complete service of process.

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As discussed below, MCGIP has demonstrated that: (1) the Doe defendants are real

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people who may be sued in federal court; (2) it has attempted unsuccessfully to identify the Doe

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defendants prior to filing this motion; (3) its infringement and civil conspiracy claims against the

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Doe defendants could survive a motion to dismiss; and (4) there is a reasonable likelihood that

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service of the proposed subpoenas on the ISPs will lead to information identifying the Doe

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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)

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defendants. Accordingly, the Court finds that good cause exists to allow MCGIP to engage in

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this preliminary discovery.

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I. BACKGROUND

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MCGIP is the exclusive licensee for the reproduction and distribution rights of an

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allegedly copyrighted work. Complaint ¶¶ 5, 18-20. According to MCGIP, the Doe defendants

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illegally reproduced and distributed the work to numerous third parties through a peer-to-peer

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file sharing network. Because the file sharing network used by the Doe defendants is partially

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anonymous, MCGIP claims not to know the defendants’ names and contact information, and as a

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result, it is unable to effect service of process on them. However, MCGIP has been able to

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identify the IP addresses assigned to each of the Doe defendants and the date and time that each

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defendant allegedly infringed on MCGIP’s copyrighted work. Compl. Ex. A. MCGIP also has

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identified the ISP for each of the IP addresses and seeks leave to serve a third-party subpoena on

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each ISP in order to obtain the names and contact information of the alleged infringers.

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II. DISCUSSION
A. Legal Standard

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Fed. R. Civ. P. 26(d) allows a court to authorize early discovery before the Rule 26(f)

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conference where it is convenient for the parties and witnesses and in the interests of justice.

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Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good cause”

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for the early discovery. See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL

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4055667, at *2 (N.D. Cal. Oct. 15, 2010). When the identities of defendants are not known

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before a complaint is filed, a plaintiff “should be given an opportunity through discovery to

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identify the unknown defendants unless it is clear that discovery would not uncover the

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identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629

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F.2d 637, 642 (9th Cir. 1980). In evaluating whether a plaintiff establishes good cause for

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attempting to learn the identity of Doe defendants through early discovery, courts examine

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whether plaintiff (1) has identified the Doe defendants with sufficient specificity that the court

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can determine that the defendants are a real person who can be sued in federal court, (2) has

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recounted the steps it has taken to locate and identify the defendant, (3) has demonstrated that
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Case No. 05:11-cv-001801 JF/HRL
ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY
(JFLC3)

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the action can withstand a motion to dismiss, and (4) has proved that the discovery is likely to

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lead to identifying the information that will permit service of process. Columbia Ins. Co. v.

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seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

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B. Plaintiff Has Shown Good Cause

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Here, MCGIP has made a sufficient showing with respect to each of these four factors. It

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has identified the Doe defendants with sufficient specificity by submitting a chart listing each of

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the defendants by IP address and the date of the alleged infringing conduct. See Compl. Ex. A.

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It also has described the steps its has taken to locate and identify the Doe defendants by

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investigating and collecting data on unauthorized distribution of copies of the work on

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BitTorrent-based peer-to-peer networks. Hansmeier Declaration ¶¶ 12-20. Its complaint pleads

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the essential elements of claims for copyright infringement and civil conspiracy against Doe

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defendants. Compl. ¶¶ 18-39. Finally, the proposed subpoena requests seek information from

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each ISP sufficient to identify the Doe defendant affiliated with a particular IP address, including

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the defendant’s name, address, telephone number, email address, and media access control

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address.

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The Court concludes that MCGIP thus has demonstrated good cause exists to conduct

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early discovery to identify the Doe defendants, Semitool, Inc. v. Tokyo Electron Am., Inc., 208

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F.R.D. 273, 275-77 (N.D. Cal. 2002), and that permitting MCGIP to engage in this limited, early

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discovery is consistent with Rule 26(d).

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If MCGIP identifies new entities that it believes possess similarly discoverable

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information, it may submit a declaration detailing the four requirements discussed above along

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with a proposed order consistent with the parameters articulated in this Order.

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III. CONCLUSION

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For the reasons stated above, the Court GRANTS the motion as follows:

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1. IT IS HEREBY ORDERED that Plaintiff immediately may serve Rule 45 subpoenas

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on the ISPs listed in exhibit A to the complaint in order to obtain information to identify each

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Doe defendant, including the name, address, telephone numbers, email addresses, and media

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access control addresses. Each subpoena shall have a copy of this Order attached.
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Case No. 05:11-cv-001801 JF/HRL
ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY
(JFLC3)

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2. IT IS FURTHER ORDERED that the ISPs will have thirty (30) days from the date of

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service upon them to serve the subscribers of the IP addresses with a copy of the subpoena and a

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copy of this Order. The ISPs may serve the subscribers using any reasonable means, including

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written notice sent to the subscriber’s last known address, transmitted either by first-class mail or

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via overnight service.

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3. IT IS FURTHER ORDERED that subscribers shall have thirty (30) days from the date

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of service upon them to file any motions in this court contesting the subpoena (including a

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motion to quash or modify the subpoena). If that period lapses without a subscriber contesting

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the subpoena, the ISPs shall have ten days to produce the information responsive to the subpoena

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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

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order shall confer with Plaintiff and shall not assess any charge in advance of providing the

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information requested in the subpoena. Any ISP that receives a subpoena and elects to charge for

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the costs of production shall provide a billing summary and cost reports that serve as a basis for

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such billing summary and any costs claimed by such ISP.

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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.

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7. IT IS FURTHER ORDERED that any information disclosed to Plaintiff in response to

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a Rule 45 subpoena may be used by Plaintiff solely for the purpose of protecting Plaintiff's rights

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as set forth in its complaint.

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IT IS SO ORDERED.

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DATED: 4/22/2010
__________________________________
JEREMY FOGEL
United States District Judge

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Case No. 05:11-cv-001801 JF/HRL
ORDER GRANTING EX PARTE MOTION FOR EXPEDITED DISCOVERY
(JFLC3)