ME2 Productions, Inc. v. Doe 1, et al

Filing 8

ORDER granting 4 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
WESTERN DIVISION
5:16-CV-896-FL
ME2 PRODUCTIONS, INC.,
Plaintiff,
v.
DOES 1-12,
Defendants.

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ORDER

This copyright infringement case comes before the court on plaintiff’s motion (D.E. 4)
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”)
Century Link, which plaintiff asserts provided internet services to the 12 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 Century Link
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. 5) 3 § I; Compl. (D.E. 1) ¶ 12 &
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 Century Link 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. 6 § 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 consists of

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the name, permanent address, current address, telephone number, email address, and media
access control address of each defendant. Id. at 3 § I.
IT IS THEREFORE ORDERED as follows:
1.

Plaintiff’s motion (D.E. 4) is ALLOWED on the terms set forth below.

2.

As to each defendant, plaintiff may serve on Century Link 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. Century Link 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 Century Link of a

subpoena authorized herein, Century Link shall serve written notice of the subpoena on the
defendant about whom documents are sought in the subpoena. If Century Link or the defendant
about whom documents are sought in a subpoena wishes to have the subpoena quashed or
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 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 Century Link.
4.

Century Link 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 terms of such

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order). Plaintiff 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. Century Link 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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