Venice PI, LLC v. Doe 1 et al

Filing 8

ORDER granting 4 Motion for Discovery. Counsel should read the order in its entirety for critical information. Signed by United States Magistrate Judge James E. Gates on 7/5/2017. (Briggeman, N.)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF NORTH €:AROLINA
EASTERN DIVISION
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4:17-CV-89-BR
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VENICE PI, LLC,
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Plaintiff,
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v.

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DOES 1-p,
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Defendants.

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ORDER

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Tliis copyright infringement case comes before the court on plaintiffs motion (D.E. 4)
for leave

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take discovery prior to conducting a conference pursuant to Rule 26(f) of the Federal

Rules of bvil Procedure. Specifically, plaintiff seeks leave to serve one or more subpoenas
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pursuant

to

Federal Civil Rule of Civil Procedure 45 on the internet service provider ("ISP"),

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Century !(,ink, which plaintiff asserts provided internet services to the 15 defendants named in
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the complaint, all designated as a "Doe" defendant. Although plaintiff has the internet protocol

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("IP") address associated with each defendant, along with the identity of Century Link as the ISP
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for each dnd the city and county in which the alleged infringement occurred, it seeks to obtain by
the subpLnas more comprehensive identifying information for each defendant, including the
name

an~ address of each. See Pl. 's Mem. (D.E. 5) 3-4 § I; Am.' Comp!. (D.E. 7) ~ 13 & Ex. B
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(D.E. 7-2).
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G~nerally,
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discovery is not permitted until after the parties have conferred pursuant to

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Rule 26(±). Fed. R. Civ. P. 26(d)(l). However, the court has discretion to alter the timing and
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sequencejof discovery. Id.

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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
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a reasonableness or good cause test taking into account the totality of the circumstances, or a
modified breliminary injunction test. Gaming v. W G. Yates & sJns Cons tr. Co., No. 1: 16CV30,
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2016 WLj3450829, at *3 (W.D.N.C. 16 June 2016); Lewis v. Alamance Cty. Dep 't ofSoc. Servs.,
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No.

1:15~V298,

2015 WL 2124211, at *1 (M.D.N.C. 6 May 2015).

Tfuis court agrees with the courts in this circuit that have applied the reasonableness or
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good cau$e standard to requests for expedited discovery. See Gaming, 2016 WL 3450829, at *3;
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Chryso, Inc. v. Innovative Concrete Sols. of the Carolinas, LLC, No. 5:15-CV-115-BR, 2015 WL
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12600175,-at *3 (E.D.N.C. 30 June 2015). Factors that courts consider under this test include the
procedurJl posture of the case, whether the discovery requested is narrowly tailored, whether the
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party seeking the information would be irreparably harmed by· waiting until after the parties
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conduct their Rule 26(f) conference, and whether the information sought would be unavailable or
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subject td destruction in the absence of expedited production. Chryso, 2015 WL 12600175, at
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*3.

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Hire, plaintiff alleges that defendants have acquired and transferred without authorization
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a movie for which plaintiff holds the copyright. Am. Compl.

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20, 31. It seeks identifying

informatiln for defendants in order to be able to litigate its infringement claims against them.
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Plaintiff contends, plausibly, that obtaining from Century Link as defendants' ISP the
information it seeks regarding the defendants' identity is the only means it has to identify
defendan1s and litigate its claims. Pl.' s Mem. 6-7 § II.B.3. Indeed, without the identifying
informatiln for defendants, enabling plaintiff to bring them into this case, no Rule 26(f)
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conferende could be held.

The information plaintiff seeks is i narrowly tailored to meet its
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objective of identifying defendants. It consists of the true nan}e, permanent address, current

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address, tltephone number, email address, and media access control address of each defendant.
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Id. at 4 § l.
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IT1 IS THEREFORE ORDERED as follows:
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Plaintiffs motion (D.E. 4) is ALLOWED on the tetms set forth below.

1. I

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2.!

As to each defendant, plaintiff may serve on Century Link a separate subpoena
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that

seek~

documents containing the name, permanent address, current address, telephone

number, Lmail address, and media access control address of the defendant. Century Link is
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ordered to provide the documents sought in each subpoena in accordance with the terms of this
order. Pl1ntiff shall attach to each subpoena a copy of this order.
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3. !

Within seven days after the date of plaintiffs service on Century Link of a

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subpoena! authorized herein, Century Link shall serve written notice of the subpoena on the
defendantI about whom documents are sought in the subpoena. If Century Link or the defendant
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about wHom documents are sought in a subpoena wishes to have the subpoena quashed or
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modified, such person (whether it be Century Link 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 Jbpoena (which is the date specified in the subpoena for production of the documents
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sought).

return date shall be no earlier than 21 days after the date of service by plaintiff of

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the subpofna on Century ·Link.
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Century Link shall not produce any documents in response to a subpoena prior to

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the rerurd ,date or, if any motions to quash or modify are filed' with respect to the subpoena,
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unless aJd until an order is entered denying any such motions and permitting production
pursuant

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the subpoena (in which case production shall be in acdordance with the terms of such

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order).

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~laintiff

shall notify Century Link of the filing of any motion to quash or modify a

subpoena! within one day after the filing of the motion.
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Cent~ Link shall make appropriate

arrangements to ensure that it has notice of any motions to quash ;or modify a subpoena before it
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produces ~y documents in response to the subpoena.
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5.:

Any documents produced to plaintiff in response to a subpoena, including the

informatipn contained therein, may be used by plaintiff solely for the purpose of prosecuting its
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infringertient claims in this action.
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6.

Except as expressly provided herein, by further order of the court, or in the

Federal Rlules of Civil Procedure, plaintiff may not engage in discovery in this action prior to the
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conduct df a Rule 26(f) conference.
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sf

ORDERED,

this~ day ofJuly 2017.

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United States Magistrate Judge

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