Headhunter, LLC v. Does 1-11

Filing 7

ORDER granting 5 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 CAROLINA
WESTERN DIVISION
5:17-CV-325-BR
HEADHQNTER, LLC,
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Plaintiff,

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v.

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DOES 1-11,
Defendants.

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ORDER

This copyright infringement case comes before the court on plaintiffs motion (D.E. 5)
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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
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pursuant to Federal Civil Rule of Civil Procedure 45 on the internet service providers ("ISP"),
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Time Wker Cable, Century Link, AT&T U-Verse, and Cogent Communications, which
plaintiff lsserts provided internet services to the 11 defendants named in the complaint, all
designatek · as a "Doe" defendant. Although plaintiff has the internet protocol ("IP") address
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associated with each defendant, along with the identity of Time Warner Cable, Century Link,
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AT&T UjVerse, or Cogent Communications, as the ISP for each 'and the city and state in which

the alleged infringement occurred, it seeks to obtain by the subpoenas more comprehensive
identifyijg information for each defendant, including the name and address of each. See Pl.' s
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Mem. (D.IE. 6) 1-2 §I; Compl. (D.E. 1) if 13 & Ex. B (D.E. 1-2).
Glnerally, discovery is not permitted until after the parties have conferred pursuant to
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Rule 26(t} Fed. R. Civ. P. 26(d)(l). However, the court has discretion to alter the timing and
sequence I of discovery. Id. While the Federal Rules of Civil

~rocedure do not set forth the
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standard

tb be applied in assessing a motion for expedited discovezy, courts typically apply either
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a reasonaf leness or good cause test taking into account the

tota~ity

modified breliminary injunction test. Gaming v. W. G. Yates &
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of the circumstances, or a

So~s Constr. Co., No. 1: 16CV30,

2016 WL r450829, at *3 (W.D.N.C. 16 June 2016); Lewis v. A/aniance Cty. Dep 't ofSoc. Servs.,

No. 1:15qV298, 2015 WL 2124211, at *1 (M.D.N.C. 6 May 2015).
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T*s court agrees with the courts in this circuit that have· applied the reasonableness or
good causle standard to requests for expedited discovery. See Gaming, 2016 WL 3450829, at *3;
Chryso,

l~c. v. lnrwvative Concrete Sols. ofthe 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 inciude the
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procedur~l .posture

of the case,

w~ether

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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 t~eir Rule 26(t) conference, and whether the information sought would be unavailable or
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subject to: destruction in the absence of expedited production. Chrysa, 2015 WL 12600175, at
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*3.

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H~re, plaintiff alleges that defendants have acquired and transferred without authorization
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a movie lfor which plaintiff holds the copyright.

Compl.

~~ .20,

32.

It seeks identifying

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f~tends,

informatibn for defendants in order to be able to litigate its infringement claims against them.
Plaintiff

plausibly, that obtaining from Time Warner Cable, Century Link, AT&T U-

Verse, and. Cogent Communications as defendants' ISP the information it seeks regarding the

defendanJs~ identity is the only means it has to identify defendants and litigate its claims.
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Pl.'s

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Mem. 4-~ § 11.B.3. Indeed, without the identifying information fdr defendants, enabling plaintiff
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to bring t~~m into this case, no Rule 26(t) conference could be held. The information plaintiff
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seeks is nhrrowly tailored to meet its objective of identifying defendants. It consists of the true
name, pelanent address, current address, telephone number, ejail address, and media access

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control ad~~ess of each defendant. Id. at 2 § I.

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ITirs THEREFORE ORDERED as follows:
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1.1

Plaintiffs motion (D.E. 5) is ALLOWED on the terms set forth below.

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As to each defendant, plaintiff may· serve on Time Warner Cable, Century Link,

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AT&T 1-Verse, or Cogent Communications a separate subpoena that seeks documents
containing the name, permanent address, current address, telephone number, e-mail address, and
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media acJess control address of the defendant. Time Warner Cable, Century Link, AT&T U1

Verse, add Cogent Communications are ordered to provide the documents sought in each
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subpoena Iin accordance with the terms of this order. Plaintiff shall attach to each subpoena a
copy

oft~s order.
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Within seven days after the date of plaintiff's service on Time Warner Cable,

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Century Link, AT&T U-Verse, or Cogent Communications of a subpoena authorized herein,
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Time waber Cable, Century Link, AT&T U-Verse, and Cogent Communications shall serve
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written notice of the subpoena on the defendant about whom' documents are sought in the
subpoenal If Time Warner Cable, Century Link, AT&T U-Verse, Cogent Communications, or
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defen~ant about whom documents are sought in a subpoena wishes to have the subpoena
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quashed Jr modified, such person (whether it be Time Warner Cable, Century Link, AT&T UVerse, Cjgent Communications, or the defendant) must file with the court and serve on counsel
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for plaintiff a motion to quash or modify the subpoena prior to tl:).e return date for the subpoena
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(which isjthe date specified in the subpoena for production of the ~ocuments sought). The return
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date shall ib.e no earlier than 21 days after the date of service by pltlintiff of the subpoena on Time
Warner ckble, Century Link, AT&T U-Verse, or Cogent Commjications.

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Time Warner Cable, Century Link, AT&T U-Verse, and Cogent Communications

shall not produce any documents in response to a subpoena prior to the return date or, if any
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motions th· quash or modify are filed with respect to the subpoena, unless and until an order is
entered dlnying any such motions and permitting production pursuant to the subpoena (in which
case prodlction shall be in accordance with the terms of such order). Plaintiff shall notify Time
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Warner lable, Century Link, AT&T U-Verse, or Cogent Communications of the filing of any

motion, quash or modify a subpoena within one day after the filing of the motion. Time
Warner Gable, Century Link, AT&T U-Verse, and Cogent Communications shall each make
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appropriate arrangements to ensure that it has notice of any motions to quash or modify a
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subpoenalbefore it produces any
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5.:

d~cuments in response to the subpoena.

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

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informatibn contained therein, may be used by plaintiff solely for the purpose of prosecuting its
·nfr·
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1 mgement c1 · m th' action.
aims ·
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6.1

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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
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conduct ~fa Rule 26(f) confer~.
SO ORDERED, this
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S day of July 2017.

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United States! Magistrate Judge
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