Quad Int'l., Inc. v. Doe

Filing 11

ORDER GRANTING MOTION FOR LEAVE TO TAKE LIMITED DISCOVERY by Judge Paul S. Grewal granting 9 Ex Parte Application (psglc2, COURT STAFF) (Filed on 11/2/2012)

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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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QUAD INT’L.,
Plaintiff,

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v.
JOHN DOE,

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Defendant.

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Case No.: 12-CV-5435-LHK
ORDER GRANTING MOTION FOR
LEAVE TO TAKE LIMITED
DISCOVERY PRIOR TO RULE 26(F)
CONFERENCE
(Re: Docket No. 9)

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

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in those cases, Quad is suing the defendant, known only by an Internet Protocol (“IP”) address, for
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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, Quad has made an ex parte application to the court to serve a

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subpoena on the Internet Service Provider (“ISP”) that provided internet access to Doe to turn over
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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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Quad shares with at least two previous plaintiffs, Boy Racer, Inc. and AF Holdings, Inc., both
counsel and the declarant to an affidavit submitted with the pending motion.
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Case No.: 12-5435
ORDER

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In the affidavit supporting its application, Quad’s declarant, Peter Hansmeier, points out
that expedited discovery is necessary because ISPs regularly dispose of the identifying information

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attached to IP addresses. Mr. Hansmeier assures the court that the ISP can provide Quad with the

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name, street address, and at least one email address for Doe based on the IP address alone. In light

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of its substantial experience with these types of discovery requests, 3 the court is – to put it mildly –

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skeptical that this discovery will permit the identification of Doe and service in compliance with

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Fed. R. Civ. P. 4. Nevertheless, Quad has avoided the misjoinder morass of many of its

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predecessors. 4 Without binding Quad to the representations of its predecessors, the overlap in its

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agents notwithstanding, the court finds Quad has made a sufficient showing. The court reminds

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United States District Court
For the Northern District of California

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Quad that its expedited request is limited to the ISP it identified in its moving papers and reminds

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counsel that the court is not inclined to allow further discovery if the ISP fails to provide

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information adequate to the task at hand. 5

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IT IS HEREBY ORDERED that Quad is allowed to serve immediate discovery on Doe’s

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ISP listed in Exhibit A to the Complaint by serving a Rule 45 subpoena that seeks information

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sufficient to identify Doe, including the name, addresses, telephone numbers, and email addresses

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of Doe. Quad’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.: 12-5435
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 Quad 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 Quad in advance of

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providing the information requested in the subpoena, and that the ISP that receives a subpoena and

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elects to charge for the costs of production shall provide a billing summary and cost reports that

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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 Quad or the final resolution of a timely filed and

United States District Court
For the Northern District of California

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

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subpoena may be used by Quad solely for the purpose of protecting its rights under the Copyright

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Act, 17 U.S.C. § 101 et seq.

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IT IS SO ORDERED.

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Dated: November ____, 2012
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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No.: 12-5435
ORDER