CELL Film Holdings, LLC v. DOE-

Filing 13

ORDER granting 11 Plaintiff's Motion to File Documents Under Seal; and granting 10 Ex Parte Motion for Leave to Issue an FRCP 45 Subpoena. Signed by Magistrate Judge Barbara Lynn Major on 1/5/2017. (kcm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 16cv2289-BEN (BLM) CELL FILM HOLDINGS, LLC, ORDER: Plaintiff, 12 13 v. 14 DOE-, 15 (1) GRANTING PLAINTIFF’S MOTION TO FILE DOCUMENTS UNDER SEAL; AND Defendant. 16 (2) GRANTING EX PARTE MOTION FOR LEAVE TO ISSUE AN FRCP 45 SUBPOENA. 17 18 [ECF Nos. 10, 11] 19 20 21 Currently before the Court is Plaintiff’s December 21, 2016 ex parte “Motion to File 22 Documents Under Seal” [ECF No. 11] and Plaintiff’s December 21, 2016 ex parte “Motion for 23 Leave to Issue an FRCP 45 Subpoena” [ECF No. 10]. Because the Defendant has not been 24 served, no opposition or reply briefs have been filed. Having reviewed Plaintiff’s motions and 25 all supporting documents, the Court GRANTS both motions for the reasons set forth below. 26 BACKGROUND 27 Plaintiff, Cell Film Holdings, LLC. (“Plaintiff”), filed a complaint against Doe- 28 alleging direct copyright infringement. ECF No. 1 (“Comp.”). Plaintiff alleges that Defendant 1 16cv2289-BEN (BLM) 1 has illegally infringed and distributed its copyrighted movie, Cell, over the internet. Id. at 4. 2 Plaintiff further alleges that Defendant infringed Plaintiff’s copyright through the BitTorrent 3 software on 107 occasions. Id. at 4-5. On September 13, 2016, Plaintiff filed an ex parte Motion 4 to Expedite Discovery, seeking to subpoena Defendant’s Internet Service Provider (“ISP”), Cox 5 Communications, for Defendant’s true name and address pursuant to Federal Rule of Civil 6 Procedure (“FRCP”) 45. ECF No. 5-1 at 3. On October 5, 2016, the Court granted Plaintiff’s ex 7 parte motion. ECF No. 7. In accordance with the Court’s order, Plaintiff served a subpoena on 8 Cox Communications on October 7, 2016. ECF No. 8 at 1. Cox Communications responded on 9 November 23, 2016, and provided the identifying information for the subscriber assigned to IP 10 address Id. 11 Plaintiff sent two letters to the subscriber of IP address Id. at 2, ECF Nos. 12 10-6, 10-7. The first letter was sent on November 23, 2016, and the second letter was sent on 13 December 2, 2016. ECF Nos. 10-6, 10-7. The letters advise the subscriber that the IP address 14 assigned to the subscriber and his or her address was used to distribute protected material, 15 including the motion picture, Cell, owned by Plaintiff. 16 recommend that the subscriber consult an attorney and ask the subscriber to contact Plaintiff’s 17 counsel to provide “assistance in identifying the infringer and responsible party.” ECF No. 10-6 18 at 2. Plaintiff has not received any response to the two letters. ECF No. 10-2, Declaration of 19 James S. Davis in Support of the Supplement to Plaintiff Motion for FRCP 45 Deposition (“Davis 20 Decl.”), at 2. Therefore, Plaintiff requested an additional ninety (90) days to complete service 21 upon the Defendant and explained that it planned to file a motion for discovery “within the next 22 few weeks.” ECF No. 8 at 2. On December 15, 2016, District Judge Benitez granted in part 23 Plaintiff’s motion. ECF No. 9. Judge Benitez gave Plaintiff until January 20, 2017 to serve 24 Defendant. Id. at 2. 25 ECF Nos. 10-6, 10-7. The letters MOTION TO FILE DOCUMENTS UNDER SEAL 26 On December 21, 2016, Plaintiff filed an ex parte motion seeking an order permitting it 27 to serve an FRCP 45 subpoena to depose the subscriber of the IP address. ECF No. 10. In 28 support of the motion, Plaintiff attached two letters addressed to the subscriber in which Plaintiff 2 16cv2289-BEN (BLM) 1 redacted the subscriber’s name and address. ECF Nos. 10-6, 10-7. Also on December 21, 2016, 2 Plaintiff filed a motion to file the subscriber information of Doe- under seal. ECF 3 No. 11. Specifically, Plaintiff seeks permission to file under seal a document identifying the 4 subscriber’s name and address and to use the redacted letters. Id.; see ECF Nos. 10-6, 10-7. 5 In support, Plaintiff merely states that some judges have required this protection. ECF No. 11 6 at 1. Because it is not yet clear whether the subscriber is a witness or a future defendant, the 7 Court finds it appropriate to seal the subscriber’s identifying information. See ECF No. 10-1 at 8 16. Accordingly, the Court GRANTS Plaintiff’s motion to file the subscriber information of Doe- 9 under seal. 10 MOTION FOR LEAVE TO ISSUE AN FRCP 45 SUBPOENA 11 On October 5, 2016, the Court granted Plaintiff’s motion to expedite discovery and 12 authorized Plaintiff to subpoena records from Cox Communications to ascertain the identity of 13 the defendant, who is identified in the Complaint by an Internet Protocol (“IP”) address only. 14 ECF No. 7. On December 21, 2016, Plaintiff filed a “Motion for Leave to Issue an FRCP 45 15 Subpoena” to take additional early discovery, indicating that Cox Communications identified the 16 subscriber and requesting leave to depose the subscriber. ECF No. 10-1 at 18. Plaintiff explains 17 that the subscriber has not responded to Plaintiff’s letters seeking voluntary cooperation from 18 the subscriber to identify the alleged infringer and that therefore a deposition is necessary to 19 ascertain the identity of the alleged infringer. Id. at 16. 20 For the reasons stated in this Court’s October 5, 2016 order, Plaintiff has shown good 21 cause for its request for leave to conduct early discovery. See ECF No. 7, see also Fed. R. Civ. 22 P. 26(d)(1); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). 23 The Court also finds good cause to allow Plaintiff to depose the subscriber since the subscriber 24 has not voluntarily responded to Plaintiff’s letters and Plaintiff does not know whether the 25 subscriber is the alleged infringer or a potential witness to the alleged violation. Accordingly, 26 Plaintiff’s request to depose the subscriber identified in the sealed document filed on December 27 21, 2016 [ECF No. 10] is GRANTED with the following conditions: 28 1. The deposition length is limited to one and a half (1.5) hours. 3 16cv2289-BEN (BLM) 1 2. Questions are limited to establishing the identity of the person(s) who may have 2 installed or used a BitTorrent client on a device that used IP address located at 3 the address identified in ECF No. 11 from June 12, 2016 through June 15, 2016 to upload or 4 download the movies identified in ECF No. 10-6 at 3-4. 5 3. Plaintiff must notify the subscriber of the California Bar Lawyer Referral Service 6 available online at http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx or by 7 calling (866) 442-2529 and urge the subscriber to consult an attorney as soon as possible. 8 4. Plaintiff must make reasonable efforts to accommodate the subscriber in time and 9 location of the deposition and ensure that service of the subpoena includes a copy of this Order, 10 ECF No. 12, and ECF No. 10-6 which identifies the dates, times, and film titles of the alleged 11 violations. 12 5. Plaintiff must notify the subscriber that ignoring a Court Order, a subpoena seeking 13 the subscriber’s deposition, or a Summons and Complaint may result in sanctions including an 14 award of attorney fees and possibly the entry of a default judgment for money damages. 15 IT IS FURTHER ORDERED that Plaintiff shall refer to the subscriber generally in public 16 filings and attach a separate exhibit that includes the subscriber’s identifying information until 17 the alleged infringer(s) is identified. 18 IT IS SO ORDERED. 19 20 Dated: 1/5/2017 21 22 23 24 25 26 27 28 4 16cv2289-BEN (BLM)

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