Ingenuity13 LLC v. Doe
Filing
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ORDER granting in part plaintiff's 3 Ex Parte Application for Leave to Take Expedited Discovery. Signed by Magistrate Judge Jan M. Adler on 9/17/12. (kaj)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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INGENUITY13 LLC,
Plaintiff,
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v.
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JOHN DOE,
Defendant.
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Case No. 12-CV-1839-LAB (JMA)
ORDER GRANTING IN PART
PLAINTIFF’S EX PARTE
APPLICATION FOR LEAVE TO TAKE
EXPEDITED DISCOVERY
[Doc. No. 3]
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Before the Court is an Ex Parte Application for Leave to Take Expedited
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Discovery filed by Plaintiff Ingenuity13 LLC. Doc. No. 3. For the reasons discussed
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below, Plaintiff’s application is GRANTED IN PART.
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I.
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PROCEDURAL HISTORY
On July 26, 2012, Plaintiff filed a Complaint against Defendant John Doe
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(“Defendant”). Compl., Doc. No. 1. Plaintiff purports to be the registered owner of
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United States Copyright Registration Number PA0001791654 for the adult
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entertainment video entitled “Five Fan Favorites.” Compl., ¶¶ 2-3 & Ex. A. The
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Complaint alleges claims for copyright infringement, contributory infringement, and
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negligence. Plaintiff alleges that Defendant, using IP address 174.66.160.178, without
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Plaintiff’s authorization or license, intentionally download a torrent file particular to
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Plaintiff’s video, purposefully loaded that torrent file into his BitTorrent client, entered a
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BitTorrent swarm particular to Plaintiff’s video, and reproduced and distributed the video
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to numerous third parties. Id., ¶ 22-23. Plaintiff’s investigators detected Defendant’s
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alleged illegal download on July 16, 2012. Id., ¶ 23.
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Plaintiff seeks leave of court to serve a Rule 45 subpoena on Defendant’s
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internet service provider (“ISP”), Cox Communications, to discover Defendant’s name,
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address, telephone number, e-mail address, and Media Access Control (“MAC”)
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address. Appl., Proposed Order.
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II.
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LEGAL STANDARDS
Generally, discovery is not permitted without a court order before the parties
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have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P.
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26(d)(1). Yet, “in rare cases, courts have made exceptions, permitting limited discovery
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to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts
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necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com,
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185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th
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Cir. 1980)). Courts grant these requests when the moving party shows good cause for
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the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76
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(N.D. Cal. 2002).
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The Ninth Circuit has held that when the defendants’ identities are unknown at
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the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to
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determine the defendants’ identities “unless it is clear that discovery would not uncover
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the identities, or that the complaint would be dismissed on other grounds.” Gillespie,
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629 F.2d at 642. A district court’s decision to grant discovery to determine jurisdictional
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facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at 578.
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District courts apply a three-factor test when considering motions for early
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discovery to identify certain defendants. Id. at 578-80. First, the plaintiff should “identify
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the missing party with sufficient specificity such that the Court can determine that
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defendant is a real person or entity who could be sued in federal court.” Id. at 578.
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Second, the movant must describe “all previous steps taken to locate the elusive
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defendant” to ensure that the plaintiff has made a good faith effort to identify and serve
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process on the defendant. Id. at 579. Third, the plaintiff should establish that its suit
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against the defendant could withstand a motion to dismiss. Id. “[T]o prevent abuse of
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this extraordinary application of the discovery process and to ensure that the plaintiff
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has standing,” the plaintiff must show that some act giving rise to liability actually
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occurred and that the discovery is aimed at identifying the person who actually
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committed the act. Id. at 579-80.
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III.
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DISCUSSION
A.
Identification of Missing Parties with Sufficient Specificity
First, Plaintiff must identify Defendant with enough specificity to enable the Court
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to determine that the defendant is a real person or entity who would be subject to the
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jurisdiction of this Court. Id. at 578. Some district courts in the Ninth Circuit have
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determined that a plaintiff identifies Doe defendants with sufficient specificity by
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providing the unique IP address assigned to an individual defendant on the day of the
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allegedly infringing conduct, and by using “geolocation technology” to trace the IP
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address to a physical point of origin. See Openmind Solutions, Inc. v. Does 1-39, No.
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C-11-33-11 MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6 (N.D. Cal. Oct. 7, 2011); Pink
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Lotus Entm’t v. Does 1-46, No. C-11-02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7
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(N.D. Cal. June 21, 2011). Others have found that merely identifying the IP addresses
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assigned to the defendants on the day of the purported infringement is sufficient to
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satisfy the first factor. See MCIP, LLC v. Does 1-149, No. C-11-02331 LB, 2011 U.S.
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Dist. LEXIS 85363, at *4-5 (N.D. Cal. Aug. 15, 2011); First Time Videos, LLC v. Does 1-
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37, No. C-11-01675 LB, 2011 U.S. Dist. LEXIS 42376, at *5 (N.D. Cal. April 14, 2011).
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This Court, like other courts in this district, finds the former standard persuasive.
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See, e.g., 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-CV-
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0186 MMA (RBB), 2012 U.S. Dist. LEXIS 62980, at *10-11 (S.D. Cal. May 8, 2012).
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Here, Plaintiff’s forensic investigator, Peter Hansmeier, a technician with 6881
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Forensics, LLC (“6881"), used his company’s proprietary software to obtain the IP
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address of the computer used by Defendant, and conducted a search using publicly
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available reverse-lookup databases on the internet to identify the ISP used by
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Defendant’s computer, the city (or county) and state in which the computer was located,
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and the date and time the IP address was obtained. Hansmeier Decl. in Supp. of Appl.,
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¶¶ 20, 24; Compl., ¶ 6. Using this information, Hansmeier determined the ISP that had
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provided the IP address associated with Defendant was Cox Communications.
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Hansmeier Decl., ¶ 24. Consequently, Plaintiff has identified Defendant with sufficient
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specificity and has satisfied the first factor of the test for permitting early discovery.1
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B.
Previous Attempts to Locate Defendant
Next, Plaintiff must identify all previous steps taken to identify the Doe Defendant
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in a good faith effort to locate and serve them. See Columbia Ins. Co., 185 F.R.D. at
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579. According to Hansmeier, “Without expedited discovery in this case against John
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Doe’s ISP, Plaintiff will have no means of serving John Doe with the complaint and
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summons in this case . . . .” Hansmeier Decl., ¶ 28. This is the case because although
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6881's forensic software enables it to observe allegedly infringing activities, it does not
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allow access to an alleged infringer’s computer to obtain identifying personal
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information, nor does it allow 6881 to upload a file onto the alleged infringer’s computer
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or communicate with it in any way. Id., ¶ 21. Accordingly, Plaintiff appears to have
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investigated and obtained the data pertaining to the alleged infringement in a good faith
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effort to locate Defendant. See Digital Sin, Inc. v. Does 1-5698, No. C-11-04397 LB,
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2011 U.S. Dist. LEXIS 128033, at *5 (N.D. Cal. Nov. 4, 2011); Openmind Solutions,
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2011 U.S. Dist. LEXIS 116552, at *7-8; Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS
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65614, at *5; MCGIP, 2011 U.S. Dist. LEXIS 85363, at *5.
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C.
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Lastly, to be entitled to early discovery, Plaintiff must demonstrate that the
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Ability to Withstand a Motion to Dismiss
Complaint can withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at
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Although Plaintiff did not specify the city or county associated with Defendant’s IP
address, the Court, using publicly available software, ascertained that Defendant’s IP address
is in Chula Vista, California.
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579.
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Ability to State a Claim Upon Which Relief Can Be Granted
Plaintiff alleges that it is the owner of the copyright for the work at issue, an adult
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entertainment video entitled “Five Fan Favorites,” and that by using the BitTorrent
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protocol and process described, Defendant downloaded a torrent file particular to
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Plaintiff’s video, loaded that file into his BitTorrent client, entered a BitTorrent swarm
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particular to Plaintiff’s video, and reproduced and distributed the video to numerous third
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parties. Compl., ¶ 22. Plaintiff also alleges that Defendant failed to secure his internet
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access account, thereby allowing for its illegal use, and was thus complicit in the actions
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of any third party who used Defendant’s internet connection to illegally copy and share
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Plaintiff’s video. Id., ¶¶ 41-45. The Court finds Plaintiff has alleged a prima facie case
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of copyright infringement, contributory infringement, and negligence against Defendant.
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2.
Personal Jurisdiction
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Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins.
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Co., 185 F.R.D. at 578. Plaintiff alleges that Defendant either resides in or committed
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copyright infringement in the State of California, and that Plaintiff used geolocation
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technology to trace Defendant’s IP address to a point of origin within the State of
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California. Compl., ¶ 6. Accordingly, Plaintiff has alleged sufficient facts to show it can
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likely withstand a motion to dismiss for lack of personal jurisdiction. See, e.g., Pink
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Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6-7.
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3.
Venue
Plaintiff alleges that venue in this District is proper as to Defendant under 28
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U.S.C. §§ 1391(b) and 1400(a). Compl., ¶ 7. “The venue of suits for infringement of
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copyright is not determined by the general provision governing suits in the federal
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district courts, rather by the venue provision of the Copyright Act.” Goldberg v.
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Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. 2007). Civil actions for copyright
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infringement “may be instituted in the district in which defendant or his agent resides or
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may be found.” 28 U.S.C.A. § 1400(1) (West 2006). An individual “resides” for venue
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purposes in the district of his domicile. 17 James Wm. Moore, et al., Moore’s Federal
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Practice, § 110.39[2], at 110-76 (3d ed. 2011). A defendant is “found” for venue
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purposes where he is subject to personal jurisdiction. Id. (footnote omitted); see also
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Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1126 (9th Cir. 2010)
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(“This circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any judicial district
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where, if treated as a separate state, the defendant would be subject to personal
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jurisdiction.”). Plaintiff alleges venue is proper because although the true identity of
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Defendant is unknown, Defendant resides in this District, may be found in this District,
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or a substantial part of the infringing acts complained of occurred in this District.
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Compl., ¶ 7. Defendant appears to have an IP addresses in this District. See supra,
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fn.1. Thus, venue appears to be proper.
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Accordingly, Plaintiff’s Complaint can likely survive a motion to dismiss.
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IV.
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For the reasons set forth above, it is hereby ordered that Plaintiff’s Application is
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CONCLUSION
GRANTED IN PART as follows:
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Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon Cox
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Communications for the sole purpose of obtaining the name and address only of
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Defendant John Doe, based on the IP address listed for him in the complaint --
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174.66.160.178. Cox Communications shall have fourteen (14) calendar days after
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service of the subpoena upon it to notify its subscriber that his/her identity has been
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subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed shall
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have thirty (30) calendar days from the date of such notice to challenge the disclosure
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to Plaintiff by filing an appropriate pleading with this Court contesting the subpoena. If
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Cox Communications intends to move to quash the subpoena, it must do so prior to the
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return date of the subpoena. The return date of the subpoena must allow for at least
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forty-five (45) days from service to production. If a motion to quash or other customer
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challenge is brought, Cox Communications must preserve the information sought by
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Plaintiff pending resolution of the motion or challenge.
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2.
The subpoena shall not seek Defendant’s telephone number, email
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address, or Media Access Control (MAC) address, as this information is not necessary
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for Plaintiff to identify and serve Defendant.
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3.
Plaintiff may use the information disclosed pursuant to the subpoena only
in pursuing this litigation.
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Plaintiff shall serve a copy of this order with any subpoena served upon
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Cox Communications pursuant to this Order. Cox Communications, in turn, must
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provide a copy of this Order along with the required notice to the subscriber whose
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identity is sought pursuant to this Order.
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IT IS SO ORDERED.
DATED: September 17, 2012
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Jan M. Adler
U.S. Magistrate Judge
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