Ingenuity 13 LLC v. Doe

Filing 10

ORDER GRANTING MOTION FOR LEAVE TO TAKE LIMITED DISCOVERY PRIOR TO RULE 26(F) CONFERENCE by Judge Paul S. Grewal granting 8 Motion for Discovery (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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INGENUITY 13 LLC,
Plaintiff,

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v.
JOHN DOE,

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Defendant.

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Case No.: 12-CV-04445-LHK
ORDER GRANTING MOTION FOR
LEAVE TO TAKE LIMITED
DISCOVERY PRIOR TO RULE 26(F)
CONFERENCE
(Re: Docket No. 8)

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Plaintiff Ingenuity 13, LLC, (“Ingenuity”) seeks expedited discovery to uncover the identity
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of the unknown John Doe (“Doe”) defendant. Ingenuity’s lawsuit bears a striking resemblance to
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the many copyright infringement actions appearing before the court in 2011. 1 Like the plaintiffs in

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those cases, Ingenuity is suing the defendant, known only by an Internet Protocol (“IP”) address,
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for illegally downloading and sharing on a peer-to-peer network a film of the adult entertainment
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variety. 2 And, like those plaintiffs, Ingenuity has made an ex parte application to the court to serve

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a subpoena on the Internet Service Provider (“ISP”) that provided internet access to Doe to turn
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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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Ingenuity 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.: 12-4445
ORDER

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In the affidavit supporting its application, Ingenuity’s 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

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Ingenuity 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, Ingenuity has avoided the misjoinder

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morass of many of its predecessors. 4 Without binding Ingenuity to the representations of its

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predecessors, the overlap in its agents notwithstanding, the court finds Ingenuity has made a

United States District Court
For the Northern District of California

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sufficient showing. The court reminds Ingenuity that its expedited request is limited to the ISP it

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identified in its moving papers and reminds counsel that the court is not inclined to allow further

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discovery if the ISP fails to provide information adequate to the task at hand. 5

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IT IS HEREBY ORDERED that Ingenuity 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. Ingenuity’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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of service to file any motions in this court contesting the subpoena (including a motion to quash or

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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.: 12-4445
ORDER

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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 Ingenuity 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 Ingenuity 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

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pending the ISP’s delivering such information to Ingenuity or the final resolution of a timely filed

United States District Court
For the Northern District of California

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and granted motion to quash the subpoena with respect to such information.
IT IS FURTHER ORDERED that any information disclosed to Ingenuity in response to a

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subpoena may be used by Ingenuity 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.: 12-4445
ORDER