Venice PI, LLC v. Doe 1 et al

Filing 8

ORDER granting 5 Motion for Discovery. Counsel should read the order in its entirety for critical deadlines and information. Signed by US Magistrate Judge James E. Gates on 9/12/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT CQURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:17-CV-439-D
VENICE PI, LLC,
Plaintiff,
v.
DOES 1-15
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Defendants.

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ORDER

This copyright infringement case comes before the court on plaintiff's motion (D.E. 5)
for leave to take discovery prior to conducting a conference pursuant to Rule 26(f) of the Federal
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Rules of Civil Procedure. Specifically, plaintiff seeks leave to serve one or more subpoenas
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pursuant

t? Federal Civil Rule of Civil Procedure 45 on the internet service providers ("ISP"),

AT&T U-:Verse and Century Link, which plaintiff asserts provided internet services to the 15
defendants named in the complaint, all designated as a "Doe" defendant. Although plaintiff has
the internyt protocol ("IP") address associated with each defendant, along with the identity of
AT&T U-Verse or Century Link 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 identifying
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informatidn for each defendant, including the name and address of each. See PL' s Mem. (D .E. 6)
3-4 §I; Compl. (D.E. 1) ~ 14 & Ex. 2 (D.E. 1-2).
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Generally, discovery is not permitted until after the parties have conferred pursuant to
Rule 26(±). Fed. R. Civ. P. 26(d~(l). However, the court has discretion to alter the timing and
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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 total~ty of the circumstances, or a
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modified preliminary injunction test. Gaming v. W G. Yates & Sons Constr. Co., No. 1: l 6CV30,
2016 WL 3450829, at *3 (W.D.N.C .. 16 June 2016); Lewis v. Alamance Cty. Dep 't ofSoc. Servs.,
No. 1:15C:V298, 2015 WL 2124211, at *l (M.D.N.C. 6 May 2015).
Th~s

court agrees with the courts in this circuit that have applied the reasonableness or

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good caus~ 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
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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
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*3.
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Here, plaintiff alleges that defendants have acquired and transferred without authorization
a movie f~r which plaintiff holds the copyright.

Compl.

iii!

20, 31.

It seeks identifying

information for defendants in order to be able to litigate its infringement claims against them.
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Plaintiff contends, plausibly, that obtaining from AT&T U-Verse and Century Link as
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defendant~'. ISP the information it seeks regarding the defendants' identity is the only means it
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has to

ide~tify defendants and litigate its claims.

Pl.'s Mem. 6-7 § II.B.3. Indeed, without the

identifying information for defendants, enabling plaintiff to bring them into this case~ no Rule
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26(f) conference could be held. The information plaintiff seeks is narrowly tailored to meet its
objective of identifying defendants. It consists of the true name, permanent address, current

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address, telephone number, email address, and media access

cont~ol

address of each defendant.

Id. at 4 § (
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IT IS THEREFORE ORDERED as follows:
1.

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

2.

As to each defendant, plaintiff may serve on AT&T U-Verse or Century Link a

separate subpoena that seeks documents containing the name, permanent address, current
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address, telephone number, e-mail address, and media access control address of the defendant.
AT&T U-Verse and Century Link are ordered to provide the documents sought in each subpoena
in accordap.ce 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 plaintiffs service on AT&T U-Verse or

Century Link of a subpoena authorized herein, AT&T U-Verse and Century Link shall serve
written notice of the subpoena on the defendant about whom documents are sought in the
subpoena. If AT&T U-Verse, Century Link, or the defendant about whom documents are sought
in a subp9ena wishes to have the subpoena quashed or modified, such person (whether it be
AT&T U-Verse, 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
AT&T U-Yerse or Century Link.
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AT&T U-Verse and 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

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the subpoena, unless and until an order is entered denying any: such motions and permitting
productioQ. pursuant to the subpoena (in which case production shall be in accordance with the
terms of such order). Plaintiff shall notify AT&T U-Verse or Century Link of the filing of any
motion to ;quash or modify a subpoena within one day after the filing of the motion. AT&T UVerse and Century Link shall each 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.,
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informatio~

Any documents produced to plaintiff in response to a subpoena, including the
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 o~ a Rule 26(f) conference.
SO ORDERED, this

l ~of September 2017.

United States Magistrate Judge

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