ME2 Productions, Inc. v. Does 1-16
Filing
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ORDER granting 2 Motion for Discovery - Signed by Magistrate Judge James E. Gates on 12/1/2016. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
4:16-CV-279-FL
ME2 PRODUCTIONS, INC.,
Plaintiff,
v.
DOES 1-16,
Defendants.
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ORDER
This copyright infringement case comes before the court on plaintiff’s motion (D.E. 2)
for leave to take discovery prior to conducting a conference pursuant to Rule 26(f) of the Federal
Rules of Civil Procedure. Specifically, plaintiff seeks leave to serve one or more subpoenas
pursuant to Federal Civil Rule of Civil Procedure 45 on the internet service provider (“ISP”)
Time Warner Cable, which plaintiff asserts provided internet services to the 16 defendants
named in the complaint, each designated as a “Doe” defendant. Although plaintiff has the
internet protocol (“IP”) address associated with each defendant, along with the identity of Time
Warner Cable as the ISP for each and the city and county in which the alleged infringement
occurred, it seeks to obtain by the subpoenas more comprehensive identifying information for
each defendant, including the name and address of each. See Pl.’s Mem. (D.E. 3) 1-2 § I;
Compl. (D.E. 1) ¶ 11 & Ex. B (D.E. 1-2).
Generally, discovery is not permitted until after the parties have conferred pursuant to
Rule 26(f). Fed. R. Civ. P. 26(d)(1). However, the court has discretion to alter the timing and
sequence of discovery. Id. While the Federal Rules of Civil Procedure do not set forth the
standard to be applied in assessing a motion for expedited discovery, courts typically apply either
a reasonableness or good cause test taking into account the totality of the circumstances, or a
modified preliminary injunction test. Gaming v. W.G. Yates & Sons Constr. Co., No. 1:16CV30,
2016 WL 3450829, at *3 (W.D.N.C. 16 June 2016); Lewis v. Alamance Cty. Dep’t of Soc. Servs.,
No. 1:15CV298, 2015 WL 2124211, at *1 (M.D.N.C. 6 May 2015).
This court agrees with the courts in this circuit that have applied the reasonableness or
good cause standard to requests for expedited discovery. See Gaming, 2016 WL 3450829, at *3;
Chryso, Inc. v. Innovative Concrete Sols. of the Carolinas, LLC, No. 5:15-CV-115-BR, 2015 WL
12600175, at *3 (E.D.N.C. 30 June 2015). Factors that courts consider under this test include the
procedural posture of the case, whether the discovery requested is narrowly tailored, whether the
party seeking the information would be irreparably harmed by waiting until after the parties
conduct their Rule 26(f) conference, and whether the information sought would be unavailable or
subject to destruction in the absence of expedited production. Chryso, 2015 WL 12600175, at
*3.
Here, plaintiff alleges that defendants have acquired and transferred without authorization
a movie for which plaintiff holds the copyright. Compl. ¶ 1. It seeks identifying information for
defendants in order to be able to litigate its infringement claims against them. Plaintiff contends,
plausibly, that obtaining from Time Warner Cable as defendants’ ISP the information it seeks
regarding the defendants’ identity is the only means it has to identify defendants and litigate its
claims. Pl.’s Mem. 4-5 § II.B.3. Indeed, without the identifying information for defendants,
enabling plaintiff to bring them into this case, no Rule 26(f) conference could be held. The
information plaintiff seeks is narrowly tailored to meet its objective of identifying defendants. It
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consists of the name, permanent address, current address, telephone number, email address, and
media access control address of each defendant. Id. at 1-2 § I.
IT IS THEREFORE ORDERED as follows:
1.
Plaintiff’s motion (D.E. 2) is ALLOWED on the terms set forth below.
2.
As to each defendant, plaintiff may serve on Time Warner Cable a separate
subpoena that seeks documents containing the name, permanent address, current address,
telephone number, e-mail address, and media access control address of the defendant. Time
Warner Cable is ordered to provide the documents sought in each subpoena in accordance with
the terms of this order. Plaintiff shall attach to each subpoena a copy of this order.
3.
Within seven days after the date of plaintiff’s service on Time Warner Cable of a
subpoena authorized herein, Time Warner Cable shall serve written notice of the subpoena on
the defendant about whom documents are sought in the subpoena. If Time Warner Cable or the
defendant about whom documents are sought in a subpoena wishes to have the subpoena
quashed or modified, such person (whether it be Time Warner Cable or the defendant) must file
with the court and serve on counsel for plaintiff a motion to quash or modify the subpoena prior
to the return date for the subpoena (which is the date specified in the subpoena for production of
the documents sought). The return date shall be no earlier than 21 days after the date of service
by plaintiff of the subpoena on Time Warner Cable.
4.
Time Warner Cable shall not produce any documents in response to a subpoena
prior to the return date or, if any motions to quash or modify are filed with respect to the
subpoena, unless and until an order is entered denying any such motions and permitting
production pursuant to the subpoena (in which case production shall be in accordance with the
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terms of such order). Plaintiff shall notify Time Warner Cable of the filing of any motion to
quash or modify a subpoena within one day after the filing of the motion. Time Warner Cable
shall make appropriate arrangements to ensure that it has notice of any motions to quash or
modify a subpoena before it produces any documents in response to the subpoena.
5.
Any documents produced to plaintiff in response to a subpoena, including the
information contained therein, may be used by plaintiff solely for the purpose of prosecuting its
infringement claims in this action.
6.
Except as expressly provided herein, by further order of the court, or in the
Federal Rules of Civil Procedure, plaintiff may not engage in discovery in this action prior to the
conduct of a Rule 26(f) conference.
SO ORDERED, this 1st day of December 2016.
_________________________
James E. Gates
United States Magistrate Judge
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