UN4 Productions, Inc. v. DOE Defendants 1-8
ORDER GRANTING PLAINTIFF'S EX-PARTE MOTION FOR LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) conference re 8 Ex Parte Motion. Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 11/20/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UN4 PRODUCTIONS, INC.,
DOES 1 THROUGH 8,
CIVIL NO. 17-00564 LEK-KSC
ORDER GRANTING PLAINTIFF’S
EX-PARTE MOTION FOR LEAVE TO
SERVE THIRD PARTY SUBPOENA
PRIOR TO A RULE 26(F)
ORDER GRANTING PLAINTIFF’S EX-PARTE MOTION
FOR LEAVE TO SERVE THIRD PARTY SUBPOENA
PRIOR TO A RULE 26(F) CONFERENCE
Before the Court is Plaintiff UN4 Productions, Inc.’s
(“Plaintiff”) Ex-Parte Motion for Leave to Serve Third Party
Subpoena Prior to a Rule 26(f) Conference (“Motion”), filed
November 17, 2017.
The Court finds this matter suitable for
disposition without a hearing pursuant to Rule 7.2(d) of the
Local Rules of Practice for the U.S. District Court for the
District of Hawaii.
After carefully considering the Motion and
the applicable law, the Court hereby GRANTS Plaintiff’s Motion
for the reasons set forth below.
On November 17, 2017, Plaintiff commenced this
copyright infringement action.
Plaintiff alleges violations for
direct and contributory copyright infringement, pursuant to 17
U.S.C. § 101, et seq.
Plaintiff claims that it is the owner of
the copyright registration for the motion picture entitled
“Boyka: Undisputed IV” (“the Work”).
According to Plaintiff,
Defendants used BitTorrent, peer-to-peer file sharing protocols,
to reproduce, redistribute, and perform the Work.
After conducting an investigation, Plaintiff was able
to identify Defendants’ IP addresses and the related Internet
Service Provider (“ISP”) as Verizon Wireless.
Plaintiff seeks an order authorizing it to conduct
limited early discovery for the purpose of identifying Doe
In particular, Plaintiff wishes to serve a third-
party subpoena on Verizon Wireless.
Federal Rule of Civil Procedure (“FRCP”) 26(d)(1)
provides that “[a] party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f),
except . . . when authorized . . . by court order.”1
Civ. P. 26(d)(1).
In rare situations, however, “courts have made
exceptions, permitting limited discovery to ensue after filing of
the complaint to permit the plaintiff to learn the identifying
facts necessary to permit service on the defendant.”
Ins. Co. V. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999)
This rule applies with equal force to subpoenas served on
non-parties. Platinum Mfg. Int’l, Inc. v. UniNet Imaging, Inc.,
No. 8:08-cv-310-T-27MAP, 2008 WL 927558, at *1 n.2 (M.D. Fla.
Apr. 4, 2008) (citing Crutcher v. Fidelity Nat’l Ins. Co., 2007
WL 430655 (E.D. La. 2007)).
(citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
Courts permit early discovery when a plaintiff has
established good cause.
“Good cause” may be found where the
“need for expedited discovery, in consideration of the
administration of justice, outweighs the prejudice to the
Semitool, Inc. v. Tokyo Electron Am., Inc.,
208 F.R.D. 273, 276 (N.D. Cal. 2002).
The Ninth Circuit permits the use of discovery to
ascertain the identities of unknown defendants, “unless it is
clear that discovery would not uncover the identities, or that
the complaint would be dismissed on other grounds.”
629 F.2d at 642.
A three-factor test is employed in deciding
whether to permit early discovery to identify defendants.
First, “the plaintiff should identify the missing
party with sufficient specificity such that the
Court can determine that defendant is a real
person or entity who could be sued in federal
court.” Second, the plaintiff “should identify
all previous steps taken to locate the elusive
defendant” to ensure that the plaintiff has made a
good faith effort to identify and serve process on
the defendant. Third, the “plaintiff should
establish to the Court’s satisfaction that
plaintiff's suit against defendant could withstand
a motion to dismiss.” Further “the plaintiff
should file a request for discovery with the
Court, along with a statement of reasons
justifying the specific discovery requested as
well as identification of a limited number of
persons or entities on whom discovery process
might be served and for which there is a
reasonable likelihood that the discovery process
will lead to identifying information about
defendant that would make service of process
Dallas Buyers Club, LLC v. Doe–220.127.116.11, No. 15cv2033–BAS
(DHB), 2015 WL 5675540, at *2 (S.D. Cal. Sept. 25, 2015) (quoting
Columbia, 185 F.R.D. at 578-80) (internal citations omitted).
Courts have also considered whether the responding or opposing
party would suffer prejudice, whether the expedited discovery
would substantially contribute to the case moving forward, and
whether the requested information is likely to lead to
Patrick Collins, Inc. v. Does 1-1219,
No. C 10-14468 LB, 2010 WL 5422569, at *2 (N.D. Cal. Dec. 28,
2010); AF Holdings, LLC v. Doe, Civ. No. S-12-1078 GEB GGH, 2012
WL 1610185, at **2-3 (E.D. Cal. May 8, 2012).
Courts have found that good cause exists to permit
“expedited discovery to ascertain the identities of Doe
defendants in copyright infringement actions.”
AF Holdings, 2012
WL 1610185, at *2 (citing UMG Recordings, Inc. v. Doe., No.
C-08-03999 RMW, 2008 WL 4104207 (N.D. Cal. Sept. 4, 2008); Arista
Records LLC v. Does 1-43, Civil No. 07cv2357-LAB (POR), 2007 WL
4538697 (S.D. Cal. Dec. 20, 2007)).
Identification of Missing Party with Sufficient Specificity
The Court finds that Plaintiff has identified
Defendants with enough specificity to enable the Court to
determine that Defendants are real persons or entities who would
be subject to the Court’s jurisdiction.
Exhibit 1 to the
Complaint lists the IP addresses of each Defendant, the date of
the alleged infringement, the name of the infringing file, and
the counties in which the IP addresses are located within the
State of Hawaii.
808 Holdings, LLC v. Collective of Dec. 29,
2011 Sharing Hash, Civil No. 12cv00186 MMA(RBB), 2012 WL 1648838,
at *4 (S.D. Cal. May 4, 2012) (“[A] plaintiff identifies Doe
defendants with sufficient specificity by providing the unique IP
addresses assigned to an individual defendant on the day of the
allegedly infringing conduct, and by using ‘geolocation
technology’ to trace the IP address to a physical point of
Plaintiff also identified Verizon Wireless as the ISP
that provided the IP addresses associated with Defendants.
Steps Taken to Locate Defendants
Plaintiff has made good faith efforts to locate
It obtained IP addresses, as well as the ISP and
counties associated with those addresses.
information did not enable Plaintiff to ascertain the
subscriber’s identity or the identities of the actual Defendants.
Cobbler Nevada, LLC, v. Doe-18.104.22.168, No. 15-CV-2031-GPC(JMA),
2015 WL 5675516, at *2 (S.D. Cal. Sept. 25, 2015) (citing
Columbia, 185 F.R.D. at 579).
Ability to Withstand a Motion to Dismiss
Plaintiff alleges that it is the copyright owner of the
Work; that Defendants copied the constituent elements of the Work
without authorization, permission, or consent; that Defendants
violated Plaintiff’s exclusive rights; that each infringement was
committed willfully; that Defendants deprived the producer, all
persons involved in the production and marketing of the film, and
owners of local theaters and retail outlets from income; and that
it suffered damages as a result.
With respect to its contributory copyright infringement
claim, Plaintiff alleges that each Defendant caused or materially
contributed to the infringing conduct of each other Defendant;
that it did not authorize Defendants’ conduct; that each
Defendant knew or should have known that the other BitTorrent
users in a swarm with it were directly infringing the Work; that
each infringement was committed willfully; that Defendants
deprived the producer, all persons involved in the production and
marketing of the film, and owners of local theaters and retail
outlets from income; and that Defendants caused it to suffer
The Court finds that for the purpose of this Motion,
Plaintiff has demonstrated that its claims could survive a motion
Expedited Discovery’s Contribution to Moving the Case
The requested early discovery here would substantially
contribute to the orderly and expeditious administration of this
Without ascertaining Defendants’ identities, Plaintiff
cannot proceed with this action.
It cannot identify Defendants
in its pleadings, it cannot serve Defendants, and it cannot
conduct a Rule 26(f) conference.
AF Holdings, 2012 WL 1610185,
Prejudice to the Responding/Opposing Party
Although the need for expedited discovery must be
balanced against the prejudice to the responding party, Semitool,
208 F.R.D. at 276, the Court believes that Verizon Wireless would
suffer little to no prejudice if it is ordered to produce the
subscriber identities of a limited number of IP addresses.
Neither would Defendants suffer prejudice as a result of the
Plaintiff’s discovery request is narrowly tailored.
It seeks only to obtain the names and addresses of the
subscribers associated with IP addresses on the dates reflected
in Exhibit 1 to the Complaint.
Plaintiff also proposes that
Defendants be notified by the ISP of the subpoena and be given an
opportunity to respond before the information is produced.
parameters ensure that Defendants will not be forced to unwarily
incriminate themselves or suffer undue prejudice.
2012 WL 1610185, at *3 (“Expedited discovery may be inappropriate
where defendants are required to unwarily incriminate themselves
before they have a chance to review the facts of the case and to
retain counsel.”) (citation omitted).
Likely to Lead to Identifying Information
Finally, the Court finds that the requested discovery
is likely to lead to identifying information.
provided IP addresses for specific dates in specific counties
within the State.
Given the availability of this information,
the requested discovery should reveal Defendants’ identities.
Based on the foregoing, the Court finds that Plaintiff
has demonstrated good cause to conduct early discovery.
The Court hereby GRANTS Plaintiff’s Ex Parte Motion for
Leave to Serve Third Party Subpoena Prior to a Rule 26(f)
Conference, filed November 17, 2017, as follows:
(1) Plaintiff is allowed to serve a Rule 45 subpoena on
Verizon Wireless to obtain the name and addresses of each
subscriber associated with the IP addresses on the dates set
forth in Exhibit 1 to the Complaint.
(2) Plaintiff shall serve a copy of this Order with any
subpoena issued pursuant to this Order.
(3) The subpoena authorized by this Order shall be deemed an
appropriate court order under 47 U.S.C. § 551.
(4) Verizon Wireless shall have 30 days from the date of
service upon them to serve the subscribers of the IP
addresses with a copy of the subpoena and a copy of this
Order. Verizon Wireless may serve the subscribers by any
reasonable means, including written notice sent to the
subscriber’s last known address via first class mail.
(5) The subscribers shall have 30 days from the date of
service upon them to file any motions in this court
contesting the subpoena. If that 30-day period lapses
without a subscriber contesting the subpoena, Verizon
Wireless shall have 10 days to produce the information
responsive to the subpoena to Plaintiff.
(6) After Verizon Wireless is properly served with a Rule 45
subpoena as detailed above, it shall preserve all subpoenaed
information pending the delivery of such information to
Plaintiff or the resolution of a timely filed and granted
motion to quash the subpoena with respect to such
(7) Any information disclosed to Plaintiff in response to a
subpoena may be used by Plaintiff solely for the purpose of
protecting its rights under the Copyright Act, 17 U.S.C.
§ 101, et seq.
IT IS SO ORDERED.
Honolulu, Hawaii, November 20, 2017.
Kevin S.C. Chang
United States Magistrate Judge
CV 17-00564 LEK-KSC; UN4 PRODUCTIONS, INC. V. DOES 1 THROUGH 8; ORDER
GRANTING PLAINTIFF’S EX-PARTE MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE
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