Dallas Buyers Club, LLC v. DOE-68.101.166.122
Filing
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ORDER granting 2 EX PARTE MOTION to Expedite Discovery. Signed by Magistrate Judge Mitchell D. Dembin on 5/4/16. (Dembin, Mitchell)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 16cv0979 LAB (MDD)
Dallas Buyers Club, LLC,
Plaintiff,
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v.
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Doe-68.101.166.122,
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Defendant.
ORDER GRANTING MOTION
FOR EARLY DISCOVERY
[ECF NO. 2]
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Before the Court is Plaintiff’s Ex Parte Motion for Expedited Discovery
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filed on April 22, 2016. (ECF No. 2). No Defendant has been named or
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served. For the reasons discussed below, Plaintiff’s Motion is GRANTED.
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I. PROCEDURAL HISTORY
On April 22, 2016, Plaintiff filed a Complaint against Doe, allegedly a
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subscriber of Cox Communications assigned IP address 68.101.166.122
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(“Defendant”). (ECF No. 1). Plaintiff alleges a single cause of action for
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direct copyright infringement. Plaintiff asserts that it is the registered
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copyright holder of the motion picture Dallas Buyers Club. (Id. ¶¶ 4, 6).
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Plaintiff contends Defendant used the BitTorrent file distribution network
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16cv0979 LAB (MDD)
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to copy and distribute Plaintiff’s copyrighted work through the Internet
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without Plaintiff’s permission. (Id. ¶ 35).
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Plaintiff seeks leave to conduct early discovery to learn the identity of
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the subscriber of the subject Internet Protocol (“IP”) address from the
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Internet Service Provider (“ISP”) who leased that IP address to its
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subscriber during the relevant period. Specifically, Plaintiff seeks an order
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permitting it to serve a third party subpoena, pursuant to Fed. R. Civ. P. 45,
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on Cox Communications requiring the ISP to supply the name and address
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of its subscriber to Plaintiff.
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II. LEGAL STANDARDS
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Formal discovery generally is not permitted without a court order
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before the parties have conferred pursuant to Federal Rule of Civil
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Procedure 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts
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have made exceptions, permitting limited discovery to ensue after filing of
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the complaint to permit the plaintiff to learn the identifying facts necessary
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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
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637, 642 (9th Cir. 1980)). Requests for early or expedited discovery are
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granted upon a showing by the moving party of good cause. See Semitool,
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Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002)
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(applying “the conventional standard of good cause in evaluating Plaintiff’s
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request for expedited discovery”).
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“The Ninth Circuit has held that when the defendants’ identities are
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unknown at the time the complaint is filed, courts may grant plaintiffs
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leave to take early discovery to determine the defendants’ identities ‘unless
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it is clear that discovery would not uncover the identities, or that the
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16cv0979 LAB (MDD)
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complaint would be dismissed on other grounds.’” 808 Holdings, LLC v.
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Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB),
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2012 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at
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642). “A district court’s decision to grant discovery to determine
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jurisdictional facts is a matter of discretion.” Columbia Ins., 185 F.R.D. at
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578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430
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n.24 (9th Cir. 1977)).
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District courts apply a three-factor test when considering motions for
early discovery to identify Doe defendants. Id. at 578-80. First, “the
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plaintiff should identify the missing party with sufficient specificity such
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that the Court can determine that defendant is a real person or entity who
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could be sued in federal court.” Id. at 578. Second, the plaintiff “should
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identify all previous steps taken to locate the elusive defendant” to ensure
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that the plaintiff has made a good faith effort to identify and serve process
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on the defendant. Id. at 579. Third, the “plaintiff should establish to the
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Court’s satisfaction that plaintiff’s suit against defendant could withstand a
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motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 642). Further “the
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plaintiff should file a request for discovery with the Court, along with a
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statement of reasons justifying the specific discovery requested as well as
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identification of a limited number of persons or entities on whom discovery
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process might be served and for which there is a reasonable likelihood that
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the discovery process will lead to identifying information about defendant
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that would make service of process possible.” Id. at 580.
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//
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//
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16cv0979 LAB (MDD)
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III. ANALYSIS
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A.
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First, Plaintiff must identify Defendant with enough specificity to
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enable the Court to determine that Defendant is a real person or entity who
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would be subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D.
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at 578. This Court has previously determined that “a plaintiff identifies
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Doe defendants with sufficient specificity by providing the unique IP
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addresses assigned to an individual defendant on the day of the allegedly
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infringing conduct, and by using ‘geolocation technology’ to trace the IP
Identification of Missing Party with Sufficient Specificity
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addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at
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*4 (quoting OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ,
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2011 WL 4715200 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t, LLC v. Does
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1-46, No. C-11-02263 HRL, 2011 WL 2470986 (N.D. Cal. June 21, 2011)).
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With the Complaint and with the instant Motion, Plaintiff filed a
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chart reflecting that the user of the subject IP address engaged in allegedly
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infringing activity from February 4 through February 27, 2016; identified
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the ISP as Cox Communications; and located the IP address in San Diego,
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California, within the Southern District of California. (ECF Nos. 1-2; 2-1).
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Critically, Plaintiff also submitted the Declaration of James S. Davis in
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support of this Motion. (ECF No. 2-3). Mr. Davis states, under penalty of
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perjury, that the subject IP address belongs to Cox Communications and
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that he employed certain geolocation technology to locate the subject IP
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address within the Southern District of California. (Id.).
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Plaintiff does not address, however, when the geolocation effort was
performed. It is most likely that the subscriber is a residential user and the
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16cv0979 LAB (MDD)
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IP address assigned by ISP is “dynamic.”1 Consequently, it matters when
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the geolocation was performed. In the context of dynamic IP addresses, “a
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person using [an IP] address one month may not have been the same person
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using it the next.” State of Connecticut v. Shields, No. CR06352303, 2007
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WL 1828875 *6 (Conn. Sup. Ct. June 7, 2007). If performed in temporal
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proximity to the offending downloads, the geolocation may be probative of
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the physical location of the subscriber. If not, less so, potentially to the
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point of irrelevance. Here, although Plaintiff does not provide the date that
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geolocation was performed, the Court notes that the alleged infringement
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allegedly occurred within two months of the filing of the Complaint and the
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instant Motion. Accordingly, the geolocation appears to have been
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conducted close enough in time to the allegedly offending behavior to be
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probative.
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Consequently, Plaintiff has identified the Defendant, at this point,
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with sufficient specificity. See OpenMind Solutions, 2011 WL 4715200, at
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*2 (concluding that plaintiff satisfied the first factor by identifying the
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defendants’ IP addresses and by tracing the IP addresses to a point of origin
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within the State of California); Pink Lotus Entm’t, 2011 WL 2470986, at *3
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(same). In addition, Plaintiff has presented evidence that the identified IP
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address is physically located in this district.
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“Static IP addresses are addresses which remain set for a specific user. . . .
Dynamic IP addresses are randomly assigned to internet users and change
frequently. . . . Consequently, for dynamic IP addresses, a single IP address
may be re-assigned to many different computers in a short period of time.”
Call of the Wild Movie, LLC v. Does, 770 F. Supp. 2d 332, 356-57 (D. D.C.
2011)(citations omitted).
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B.
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Plaintiff must describe all prior steps it has taken to identify the
Previous Attempts to Locate Defendant
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defendant in a good faith effort to locate and serve him or her. See
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Columbia Ins., 185 F.R.D. at 579. Plaintiff states it has been able to
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identify the ISP used by the alleged infringer, where he or she is generally
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located, and the software used to commit the alleged acts of infringement.
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(ECF No. 5-1 at 4.) Plaintiff appears to have obtained and investigated the
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available data pertaining to the alleged infringement in a good faith effort
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to locate Defendant. See OpenMind Solutions, 2011 WL 4715200, at *3;
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MCGIP, LLC v. Does 1-149, 2011 WL 3607666, *2 (N.D. Cal. Aug. 3, 2011);
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Pink Lotus Entm’t, 2011 WL 2470986, at *3.
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C.
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“Finally, to be entitled to early discovery, [Plaintiff] must
Ability to Withstand a Motion to Dismiss
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demonstrate that its Complaint can withstand a motion to dismiss.” 808
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Holdings, 2012 WL 1648838 at *5 (citing Columbia Ins., 185 F.R.D. at 579).
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In order to establish copyright infringement, a plaintiff must show: (1)
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ownership of a valid copyright, and (2) that the defendant violated the
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copyright owner’s exclusive rights under the Copyright Act. Ellison v.
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Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004); 17 U.S.C. § 501(a). Here,
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Plaintiff alleges it owns the registered copyright of the work that Defendant
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allegedly copied and distributed using the BitTorrent file distribution
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network. (ECF No. 1 ¶¶ 4, 6, 12.) Plaintiff also alleges it did not permit or
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consent to Defendant’s copying or distribution of its work. (Id. ¶ 35.) It
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appears Plaintiff has stated a prima facie claim for copyright infringement
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that can withstand a motion to dismiss.
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16cv0979 LAB (MDD)
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D.
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As discussed above, Plaintiff has sufficiently established that it is
Personal Jurisdiction
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likely that the Defendant is located within the Southern District of
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California and is subject to the personal jurisdiction of the Court.
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E.
Venue
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“The venue of suits for infringement of copyright is not determined by
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the general provision governing suits in the federal district courts, rather by
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the venue provision of the Copyright Act.” Goldberg v. Cameron, 482 F.
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Supp. 2d 1136, 1143 (N.D. Cal. 2007) (citing 28 U.S.C. § 1400(a); Lumiere v.
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Mae Edna Wilder, Inc., 261 U.S. 174, 176 (1923)). “In copyright
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infringement actions, venue is proper ‘in the district in which the defendant
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or his agent resides or may be found.’” Brayton Purcell LLP v. Recordon &
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Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010) (quoting 28 U.S.C. § 1400(a)).
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“The Ninth Circuit interprets this statutory provision to allow venue ‘in any
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judicial district in which the defendant would be amendable to personal
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jurisdiction if the district were a separate state.’” Id.
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As discussed above, Defendant is likely to be located in this District
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and the acts complained of also likely occurred here. Accordingly, venue
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appears proper in this District at this time.
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F.
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Plaintiff has not provided a proposed subpoena. Plaintiff stated,
Specific Discovery Request
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however, that it will seek to obtain only the name and address of the
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subscriber associated with the IP address from Cox Communications.
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The Court finds Plaintiff has shown good cause to subpoena records
from Cox Communications identifying the subscriber assigned to the subject
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IP address at the identified times. The subpoena must be limited to
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documents identifying the subscriber’s name and address during the
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relevant period. That information should be sufficient for Plaintiff to be
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able to identify and serve Defendant. If Plaintiff is unable to identify and
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serve Defendant after receiving a response to the subpoena, Plaintiff may
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seek leave from the Court to pursue additional discovery.
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G.
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Finally, the Court must consider the requirements of the Cable
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Privacy Act, 47 U.S.C. § 551. The Act generally prohibits cable operators
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from disclosing personally identifiable information regarding subscribers
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without the prior written or electronic consent of the subscriber. 47 U.S.C.
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§ 551(c)(1). A cable operator, however, may disclose such information if the
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disclosure is made pursuant to a court order and the cable operator provides
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the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The ISP
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that Plaintiff intends to subpoena in this case is a cable operator within the
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meaning of the Act.
IV. CONCLUSION
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Cable Privacy Act
For the reasons set forth above, Plaintiff’s Ex Parte Motion for
Expedited Discovery is GRANTED, as follows:
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Plaintiff may serve a subpoena, pursuant to and compliant with
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the procedures of Fed. R. Civ. P. 45, on Cox Communications seeking only
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the name and address of the subscriber assigned to the subject IP address
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for the relevant time period.
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2.
The subpoena must provide at least forty-five (45) calendar days
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from service to production. Cox Communications may seek to quash or
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modify the subpoena as provided at Rule 45(d)(3).
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3.
Cox Communications shall notify its subscriber, no later than
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fourteen (14) calendar days after service of the subpoena, that his or her
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identity has been subpoenaed by Plaintiff. The subscriber whose identity
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has been subpoenaed shall then have thirty (30) calendar days from the
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date of the notice to seek a protective order, to move to quash or modify the
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subpoena or file any other responsive pleading.
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4.
Plaintiff shall serve a copy of this Order with the subpoena upon
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Cox Communications. Cox Communications, in turn, must provide a copy of
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this Order along with the required notice to the subscriber whose identity is
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sought pursuant to this Order.
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5.
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IT IS SO ORDERED.
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No other discovery is authorized at this time.
Dated: May 4, 2016
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