AF Holdings, LLC v. Doe
Filing
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ORDER GRANTING MOTION FOR LEAVE TO TAKE LIMITED DISCOVERY PRIOR TO RULE 26(F) CONFERENCE by Judge Paul S. Grewal granting 14 Ex Parte Application (psglc2, COURT STAFF) (Filed on 10/2/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
For the Northern District of California
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AF HOLDINGS LLC,
Plaintiff,
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v.
JOHN DOE,
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Defendant.
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Case No.: 12-CV-2394-LHK
ORDER GRANTING MOTION FOR
LEAVE TO TAKE LIMITED
DISCOVERY PRIOR TO RULE 26(F)
CONFERENCE
(Re: Docket No. 14)
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Plaintiff AF Holdings, LLC, (“AF Holdings”) seeks expedited discovery to uncover the
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identity of the unknown John Doe (“Doe”) defendant. AF Holding’s lawsuit bears a striking
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resemblance to the many copyright infringement actions appearing before the court in 2011.1 Like
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the plaintiffs in those cases, AF Holdings is suing the defendant, known only by an Internet
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Protocol (“IP”) address, for illegally downloading and sharing on a peer-to-peer network a film of
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the adult entertainment variety.2 And, like those plaintiffs, AF Holdings has made an ex parte
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application to the court to serve a subpoena on the Internet Service Provider (“ISP”) that provided
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internet access to Doe to turn over identifying information.
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See Boy Racer, Inc. v. Does 1-52, Case No. 11-cv-2329-PSG, 2011 WL 7402999 at *1 n.1 (N.D.
Cal. Sept. 3, 2011) (listing cases).
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AF Holdings shares with at least one previous plaintiff, Boy Racer, Inc., both counsel and the
declarant to an affidavit submitted with the pending motion.
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Case No.: 12-2394
ORDER
In the affidavit supporting its application, AF Holdings’ declarant, Peter Hansmeier, points
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out that expedited discovery is necessary because ISPs regularly dispose of the identifying
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information attached to IP addresses. Mr. Hansmeier assures the court that the ISP can provide AF
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Holdings with the name, street address, and at least one email address for Doe based on the IP
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address alone. In light of its substantial experience with these types of discovery requests,3 the
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court is – to put it mildly – skeptical that this discovery will permit the identification of Doe and
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service in compliance with Fed. R. Civ. P. 4. Nevertheless, AF Holdings has avoided the
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misjoinder morass of many of its predecessors.4 Without binding AF Holdings to the
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representations of its predecessors, the overlap in its agents notwithstanding, the court finds AF
United States District Court
For the Northern District of California
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Holdings has made a sufficient showing. The court reminds AF Holdings that its expedited request
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is limited to the ISP it identified in its moving papers and reminds counsel that the court is not
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inclined to allow further discovery if the ISP fails to provide information adequate to the task at
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hand.5
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IT IS HEREBY ORDERED that AF Holdings is allowed to serve immediate discovery on
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Doe’s ISP listed in Exhibit A to the Complaint by serving a Rule 45 subpoena that seeks
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information sufficient to identify Doe, including the name, addresses, telephone numbers, and
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email addresses of Doe. AF Holding’s counsel shall include a copy of this order.
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IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service upon it
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to serve Doe with a copy of the subpoena and a copy of this order. The ISP may serve Doe using
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any reasonable means, including written notice sent to Doe’s last known address, transmitted either
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by first-class mail or via overnight service. The ISP and Doe each shall have 30 days from the date
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See, e.g., Patrick Collins, Inc. v. John Does 1 through 38, Case No. 12-cv-01451, 2012 WL
2681828 (E.D. Cal. July 6, 2012); OpenMind Solutions, Inc. v. Does 1-39, Case No. 11-3311 MEJ,
2011 WL 3740714 (N.D. Cal. Aug. 23, 2011); Diabolic Video Prods. v. Does 1-2099, Case No. 10cv-5865-PSG, 2011 WL 3100404 (N.D. Cal. May 31, 2011). Cf. Incorp Serv. v. Does 1-10, Case
No. 11-4660 PSG, 2011 WL 5444789 at *2 n.17 (N.D. Cal. Nov. 9, 2011) (distinguishing
coordinated attempts to perpetrate click-through fraud, which allowed joinder of numerous Does,
from “a large number of unrelated Doe defendants connected by nothing more than their alleged
participation in an online peer-to-peer ‘swarm,’” which did not permit joinder).
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See Boy Racer, Inc., 2011 WL 7402999 at *2.
See id. at *3.
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Case No.: 12-2394
ORDER
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of service to file any motions in this court contesting the subpoena (including a motion to quash or
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modify the subpoena). If that 30-day period lapses without Doe or the ISP contesting the
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subpoena, the ISP shall have 10 days to produce to AF Holdings the information responsive to the
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subpoena with respect to Doe.
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IT IS FURTHER ORDERED that the ISP shall not assess any charge to AF Holdings in
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advance of providing the information requested in the subpoena, and that the ISP that receives a
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subpoena and elects to charge for the costs of production shall provide a billing summary and cost
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reports that serve as a basis for such billing summary and any costs claimed by the ISP.
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IT IS FURTHER ORDERED that the ISP shall preserve all subpoenaed information
United States District Court
For the Northern District of California
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pending the ISP’s delivering such information to AF Holdings or the final resolution of a timely
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filed and granted motion to quash the subpoena with respect to such information.
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IT IS FURTHER ORDERED that any information disclosed to AF Holdings in response to
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a subpoena may be used by AF Holdings solely for the purpose of protecting its rights under the
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Copyright Act, 17 U.S.C. § 101 et seq.
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IT IS SO ORDERED.
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Dated: October 2, 2012
_________________________________
PAUL S. GREWAL
United States Magistrate Judge
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Case No.: 12-2394
ORDER
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