Dallas Buyers Club LLC v. DOE-73.170.32.155

Filing 18

Order by Magistrate Judge Howard R. Lloyd granting 5 Motion for Leave to Conduct Expedited Discovery and Denying as Moot 17 Motion for Leave to Conduct Expedited Discovery. (hrllc1S, COURT STAFF) (Filed on 4/27/2016)

E-Filed 4/27/16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DALLAS BUYERS CLUB LLC,
Plaintiff,

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v.
DOE-73.170.32.155,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-00859-HRL
ORDER GRANTING EX PARTE
MOTION TO CONDUCT LIMITED
DISCOVERY
Re: Dkt. Nos. 5, 17

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Plaintiff Dallas Buyers Club LLC (“DBC”) holds the copyright to the movie Dallas Buyers

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Club. Dkt. No. 1 at 2. DBC sues an unknown defendant for copyright infringement that was

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allegedly committed in Palo Alto when the defendant shared copies of Dallas Buyers Club

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through online file-sharing software. Dkt. No. 1 at 5-11. DBC moves the court for leave to

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conduct limited discovery—service of a subpoena on Comcast—in order to learn the name and the

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address of the Comcast subscriber whose account was allegedly used to commit copyright

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infringement. Dkt. No. 5. DBC has also filed a second motion that is substantially the same as the

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first. Dkt. No. 17.

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The court, for the reasons discussed below, grants the first motion and denies as moot the
second motion.
Discussion

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Discovery ordinarily may not take place before the defendant has been served, but a

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district court has discretion to permit limited early discovery for good cause shown. E.g., Apple

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Inc. v. Samsung Electronics Co., Ltd., 5:11-cv-01846, 2011 WL 1938154 at 1 (N.D. Cal. May 18,

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2011). The Ninth Circuit has specifically prescribed how a plaintiff should justify a request to

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conduct limited early discovery for the purpose of identifying an absent defendant who allegedly

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violated the law over the internet. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577-78

(9th Cir. 1999).

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requirements: (1) the plaintiff “should identify the missing party with sufficient specificity” to

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permit the court to determine that the defendant is a person or entity who can be sued in federal

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court, id. at 578; (2) the plaintiff should “identify all previous steps taken to locate the elusive

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defendant” so the court can verify the plaintiff made a good-faith effort to find and serve the

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defendant, id. at 579; (3) the plaintiff “should establish to the [c]ourt’s satisfaction that” the case

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“could withstand a motion to dismiss,” id. at 579 (citing Gillespie v. Civiletti, 629 F.2d 637, 642

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(9th Cir. 1980)); and (4) the plaintiff’s request for discovery should “justify[] the specific

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discovery requested” and should also identify “a limited number of persons or entities” who might

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be served in order to seek information that will lead to the identification of the defendant, id. at

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United States District Court
Northern District of California

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A district court should review whether the plaintiff has satisfied four

580. The court’s decision should fairly balance “the need to provide injured parties with a[] forum

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in which they may seek redress for grievances” against “the legitimate and valuable right to

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participate in online forums anonymously or pseudonymously.” Id. at 578.

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The court is satisfied that DBC, for good cause shown, should be permitted to subpoena

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Comcast for the name and address of the subscriber who has been assigned IP address

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73.170.32.155 by Comcast. DBC identified the missing defendant with sufficient specificity—the

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person in Palo Alto who allegedly used BitTorrent to share copies of Dallas Buyers Club and who

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accessed the internet through the Comcast account that had been assigned IP address

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73.170.32.155. Dkt. No. 1 at 3; Dkt. No. 5 at 4. DBC has listed the steps it took to investigate the

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defendant’s identity and has explained why it cannot feasibly identify the defendant without

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limited early discovery. Dkt. No. 1 at 3-5; Dkt. No. 5 at 5. DBC has also satisfied the court that

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its case could withstand a motion to dismiss. A copyright infringement claimant must show it

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owns the allegedly infringed material and that an exclusive right granted to copyright holders

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under 17 U.S.C. § 106 has been infringed upon. E.g., Perfect 10, Inc. v. Amazon.com, Inc., 508

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F.3d 1146, 1159 (9th Cir. 2007). DBC has fairly alleged that it owns the copyright to Dallas

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Buyers Club.

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authorization, has copied and distributed that movie in violation of DBC’s exclusive rights to

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control the creation and distribution of new copies. Dkt. No. 1 at 3-5; see 17 U.S.C. § 106(1), (3).

Dkt. No. 1 at 2.

DBC has also fairly alleged that the defendant, without

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Finally, DBC specifically seeks leave to discover only the name and address of an unknown

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Comcast subscriber who is likely to either be or else know the name of the defendant, and DBC

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asks to subpoena only Comcast in order to obtain that subscriber’s name and address. Dkt. No. 5

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at 2. The undersigned is therefore persuaded that the need to provide DBC with a forum where it

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has a real opportunity to seek redress for its grievances outweighs the defendant’s legitimate

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interest in using the internet anonymously.

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73.202.228.252, 5:16-cv-00858-PSG, Dkt. No. 13 at 13 (N.D. Cal. Mar. 23, 2016) (granting an ex

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parte motion for leave to conduct limited discovery).

Accord Dallas Buyers Club, LLC v. DOE-

Conclusion

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DBC has shown good cause to justify limited early discovery. The court therefore grants

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United States District Court
Northern District of California

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DBC leave to file, no later than May 4, 2016, a proposed subpoena and a proposed order that

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would approve the proposed subpoena. The proposed order should also specify that DBC will

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serve a copy of this order along with the subpoena. The court denies as moot DBC’s duplicative

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second motion. Dkt. No. 17.

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IT IS SO ORDERED.
Dated: 4/27/16

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HOWARD R. LLOYD
United States Magistrate Judge

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