CELL Film Holdings, LLC v. DOE-72.197.18.54

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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv2289-BEN (BLM)

CELL FILM HOLDINGS, LLC,

ORDER:

Plaintiff,

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v.

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DOE-72.197.18.54,

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(1) GRANTING PLAINTIFF’S MOTION
TO FILE DOCUMENTS UNDER SEAL;
AND

Defendant.

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(2) GRANTING EX PARTE MOTION FOR
LEAVE TO ISSUE AN FRCP 45
SUBPOENA.

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[ECF Nos. 10, 11]

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Currently before the Court is Plaintiff’s December 21, 2016 ex parte “Motion to File

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Documents Under Seal” [ECF No. 11] and Plaintiff’s December 21, 2016 ex parte “Motion for

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Leave to Issue an FRCP 45 Subpoena” [ECF No. 10]. Because the Defendant has not been

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served, no opposition or reply briefs have been filed. Having reviewed Plaintiff’s motions and

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all supporting documents, the Court GRANTS both motions for the reasons set forth below.

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BACKGROUND

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Plaintiff, Cell Film Holdings, LLC. (“Plaintiff”), filed a complaint against Doe-72.197.18.54

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alleging direct copyright infringement. ECF No. 1 (“Comp.”). Plaintiff alleges that Defendant
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has illegally infringed and distributed its copyrighted movie, Cell, over the internet. Id. at 4.

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Plaintiff further alleges that Defendant infringed Plaintiff’s copyright through the BitTorrent

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software on 107 occasions. Id. at 4-5. On September 13, 2016, Plaintiff filed an ex parte Motion

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to Expedite Discovery, seeking to subpoena Defendant’s Internet Service Provider (“ISP”), Cox

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Communications, for Defendant’s true name and address pursuant to Federal Rule of Civil

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Procedure (“FRCP”) 45. ECF No. 5-1 at 3. On October 5, 2016, the Court granted Plaintiff’s ex

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parte motion. ECF No. 7. In accordance with the Court’s order, Plaintiff served a subpoena on

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Cox Communications on October 7, 2016. ECF No. 8 at 1. Cox Communications responded on

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November 23, 2016, and provided the identifying information for the subscriber assigned to IP

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address 72.197.18.54. Id.

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Plaintiff sent two letters to the subscriber of IP address 72.197.18.54. Id. at 2, ECF Nos.

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10-6, 10-7. The first letter was sent on November 23, 2016, and the second letter was sent on

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December 2, 2016. ECF Nos. 10-6, 10-7. The letters advise the subscriber that the IP address

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assigned to the subscriber and his or her address was used to distribute protected material,

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including the motion picture, Cell, owned by Plaintiff.

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recommend that the subscriber consult an attorney and ask the subscriber to contact Plaintiff’s

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counsel to provide “assistance in identifying the infringer and responsible party.” ECF No. 10-6

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at 2. Plaintiff has not received any response to the two letters. ECF No. 10-2, Declaration of

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James S. Davis in Support of the Supplement to Plaintiff Motion for FRCP 45 Deposition (“Davis

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Decl.”), at 2. Therefore, Plaintiff requested an additional ninety (90) days to complete service

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upon the Defendant and explained that it planned to file a motion for discovery “within the next

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few weeks.” ECF No. 8 at 2. On December 15, 2016, District Judge Benitez granted in part

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Plaintiff’s motion. ECF No. 9. Judge Benitez gave Plaintiff until January 20, 2017 to serve

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Defendant. Id. at 2.

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ECF Nos. 10-6, 10-7.

The letters

MOTION TO FILE DOCUMENTS UNDER SEAL

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On December 21, 2016, Plaintiff filed an ex parte motion seeking an order permitting it

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to serve an FRCP 45 subpoena to depose the subscriber of the IP address. ECF No. 10. In

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support of the motion, Plaintiff attached two letters addressed to the subscriber in which Plaintiff
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redacted the subscriber’s name and address. ECF Nos. 10-6, 10-7. Also on December 21, 2016,

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Plaintiff filed a motion to file the subscriber information of Doe-72.197.18.54 under seal. ECF

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No. 11. Specifically, Plaintiff seeks permission to file under seal a document identifying the

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subscriber’s name and address and to use the redacted letters. Id.; see ECF Nos. 10-6, 10-7.

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In support, Plaintiff merely states that some judges have required this protection. ECF No. 11

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at 1. Because it is not yet clear whether the subscriber is a witness or a future defendant, the

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Court finds it appropriate to seal the subscriber’s identifying information. See ECF No. 10-1 at

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16. Accordingly, the Court GRANTS Plaintiff’s motion to file the subscriber information of Doe-

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72.197.18.54 under seal.

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MOTION FOR LEAVE TO ISSUE AN FRCP 45 SUBPOENA

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On October 5, 2016, the Court granted Plaintiff’s motion to expedite discovery and

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authorized Plaintiff to subpoena records from Cox Communications to ascertain the identity of

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the defendant, who is identified in the Complaint by an Internet Protocol (“IP”) address only.

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ECF No. 7. On December 21, 2016, Plaintiff filed a “Motion for Leave to Issue an FRCP 45

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Subpoena” to take additional early discovery, indicating that Cox Communications identified the

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subscriber and requesting leave to depose the subscriber. ECF No. 10-1 at 18. Plaintiff explains

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that the subscriber has not responded to Plaintiff’s letters seeking voluntary cooperation from

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the subscriber to identify the alleged infringer and that therefore a deposition is necessary to

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ascertain the identity of the alleged infringer. Id. at 16.

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For the reasons stated in this Court’s October 5, 2016 order, Plaintiff has shown good

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cause for its request for leave to conduct early discovery. See ECF No. 7, see also Fed. R. Civ.

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P. 26(d)(1); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).

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The Court also finds good cause to allow Plaintiff to depose the subscriber since the subscriber

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has not voluntarily responded to Plaintiff’s letters and Plaintiff does not know whether the

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subscriber is the alleged infringer or a potential witness to the alleged violation. Accordingly,

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Plaintiff’s request to depose the subscriber identified in the sealed document filed on December

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21, 2016 [ECF No. 10] is GRANTED with the following conditions:

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1.

The deposition length is limited to one and a half (1.5) hours.
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2.

Questions are limited to establishing the identity of the person(s) who may have

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installed or used a BitTorrent client on a device that used IP address 72.197.18.54 located at

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the address identified in ECF No. 11 from June 12, 2016 through June 15, 2016 to upload or

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download the movies identified in ECF No. 10-6 at 3-4.

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3.

Plaintiff must notify the subscriber of the California Bar Lawyer Referral Service

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available online at http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx or by

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calling [phone] and urge the subscriber to consult an attorney as soon as possible.

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4.

Plaintiff must make reasonable efforts to accommodate the subscriber in time and

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location of the deposition and ensure that service of the subpoena includes a copy of this Order,

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ECF No. 12, and ECF No. 10-6 which identifies the dates, times, and film titles of the alleged

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violations.

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5.

Plaintiff must notify the subscriber that ignoring a Court Order, a subpoena seeking

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the subscriber’s deposition, or a Summons and Complaint may result in sanctions including an

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award of attorney fees and possibly the entry of a default judgment for money damages.

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IT IS FURTHER ORDERED that Plaintiff shall refer to the subscriber generally in public

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filings and attach a separate exhibit that includes the subscriber’s identifying information until

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the alleged infringer(s) is identified.

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IT IS SO ORDERED.

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Dated: 1/5/2017

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