Rynoryder Productions, Inc. v. Does 1-8

Filing 7

ORDER granting 5 Motion for Leave to Take Discovery. Signed by Magistrate Judge Terence P Kemp on 6/7/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Rynoryder Productions, Inc.,
Plaintiff,
v.

:
:
:

Case No. 2:13-cv-252

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

John Does 1-8,
Defendants.

:
ORDER

This matter is before the Court on the motion for leave to
take discovery prior to the Rule 26(f) conference filed by
plaintiff Rynoryder Productions, Inc.

For the following reasons,

the motion for leave (#5) will be granted.
I.
This is a copyright infringement and contributory copyright
infringement case involving the file transfer technology known as
BitTorrent.

The use of this technology, which allows peer-to-

peer file sharing, has resulted in much litigation as of late.
See, e.g., Third Degree Films, Inc. v. John Does 1-72, 2013 WL
1164024 (E.D. Michigan March 18, 2013)(provides detailed
explanation of BitTorrent file-sharing protocol).

The focus of

the litigation has been the alleged use of this technology to
unlawfully reproduce and distribute via the internet copyrighted
motion pictures.

The particular motion picture at issue in this

case is “Evidence.”
In this case, Rynoryder has identified eight Doe defendants
by the internet protocol (IP) address assigned to them
internet service providers (ISPs).

by their

Rynorider has attached to its

complaint the ISP for each defendant, the torrent file copied and
distributed by them, and their location at the time of the

allegedly infringing download.

Through its current motion,

Rynoryder seeks to serve a Rule 45 subpoena on the ISPs that
issued the IP addresses to uncover the identity of the account
holders of these IP addresses, including their names, addresses,
telephone numbers, email addresses, and Media Access Control
addresses.

The identified ISPs include Comcast Cable, Embarq

Corporation, Frontier Communications, Fuse Internet Access, and
WideOpenWest.

Rynoryder states that any information disclosed

in response to the subpoena will be used only for the purpose of
protecting its rights under the Copyright Act.
II.
Fed.R.Civ.P. 26(d) provides generally that discovery may not
begin prior to the Rule 26(f) conference.

However, Rule 26(d)

also provides that expedited discovery may be conducted prior to
that conference when authorized by court order.

Consequently, a

district court has the discretion to permit discovery prior to a
Rule 26(f) conference.

See, e.g., Qwest Communs. Int'l Inc. v.

Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).
Courts within the Sixth Circuit require a showing of good cause
in order to authorize expedited discovery.

Tesuco Holdings Ltd.

v. Does 1-12, 2012 WL 6607894 (E.D. Tenn. December 18, 2012).
Good cause may be found based upon “(1) allegations of
copyright infringement, (2) the danger that the ISP will not
preserve the information sought, (3) the narrow scope of the
information sought, and (4) the conclusion that expedited
discovery would substantially contribute to moving the case
forward.”

Best v. Mobile Streams, Inc., 2012 WL 5996222, *1

(S.D. Ohio November 30, 2012), citing Arista Records, LLC v. Does
1-9, 2008 WL 2982265 (S.D. Ohio July 29, 2008).

Courts also look

to whether evidence would be lost or destroyed with time and
whether the proposed discovery is narrowly tailored.

Id.; see

also Arista Records, LLC v. Does 1-15, 2007 WL 5254326 (S.D. Ohio
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May 17, 2007).
Rynoryder contends that it has demonstrated good cause under
the standards described above.

On this issue, Rynoryder asserts

that it has sufficiently identified the Doe defendants through
their IP addresses.

Further, it contends that it has asserted a

prima facie case for direct copyright infringement.

It also

contends that it has only a limited time for obtaining the
identities of the Doe defendants becaue ISPs may erase the data.
Additionally, Rynoryder asserts that a claim for copyright
infringement presumes irreparable harm to the copyright owner.
Further, Rynoryder argues that defendants have no expectation of
privacy in this information and will not be prejudiced by its
disclosure.

Finally, it contends that its requests are narrowly

tailored and the information it seeks will be used only for the
purposes of protecting their rights under copyright laws.
Rynoryder also argues that “courts throughout the country”
have “consistently” granted motions for expedited discovery in
actions against BitTorrent defendants.

The Court’s review of the

authority cited by Rynoryder indicates that this is generally
true.

Courts within the Sixth Circuit have found good cause and

granted motions for expedited discovery in such actions as well.
See, e.g., Vision Films, Inc. v. Does 1-16, 2013 WL 1385206 (E.D.
Tenn. April 3, 2013); Malibu Media, LLC v. John Does 1-9, 2013 WL
142083 (E.D. Mich. January 11, 2013)(granting motion in part).
In granting expedited discovery in BitTorrent cases, courts
have found several factors significant.

One such factor is the

specificity with which the defendants have been identified,
including the assigned IP addresses, the date and time of the
alleged illegal download, the hash identifier of the downloaded
file, the ISP, and the location of the IP address.

Also

significant are the steps taken by the plaintiff to locate and
identify the Doe defendants.

Further, courts have looked to
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whether the elements of a copyright infringement claim have been
pled.

Courts also have considered whether the proposed discovery

seeks information likely to lead to information which would allow
a plaintiff to effectuate service on the defendants.

Finally,

courts have considered the likelihood of prejudice to any alleged
infringers.

See, e.g., Vision Films, 2013 WL 1385203, at *2.

As noted above, in Exhibit 1 to its motion, Rynoryder
provides the IP address assigned to each Doe defendant, the date
and time of the download at issue, the hash identifier, the ISP,
and the location of the IP address.

The Court concludes that,

based on this information, Rynoryder has identified the Doe
defendants with sufficient specificity.

Further, based on the

declaration of Darren M. Griffin, a software consultant,
Rynoryder has described in detail its efforts to identify the Doe
defendants.

Additionally, Rynoryder has pled a copyright

infringement claim.

Finally, Rynoryder has demonstrated that the

information it seeks is likely to lead to information which will
allow it to identify and perfect service on the Doe defendants.
Given Rynoryder’s stated purpose in seeking this
information, there is no suggestion that the Doe defendants would
be prejudiced by allowing such limited expedited discovery.
Rather, as the Court explained in Malibu Media, LLC v. John Does
1-23, 2012 WL 1144822, *2 (D. Colo. April 4, 2012),
Much like the Arista Records defendants,
Defendants here have engaged in anonymous online
behavior, which will likely remain anonymous unless
Plaintiff is able to ascertain their identities. Thus,
Plaintiff reasonably believes that there are no
practical methods to discover Defendants' identities
without court-ordered discovery. Accordingly, because
it appears likely that Plaintiff will be thwarted in
its attempts to identify Defendants without the benefit
of formal discovery mechanisms, the court finds that
Plaintiff should be permitted to conduct expedited
discovery, pursuant to Fed.R.Civ.P. 45, for the limited
purpose of discovery the identities of Defendants.
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Taking all of the above into account, the Court concludes
that Rynoryder has demonstrated good cause for the expedited
discovery.

Consequently, the motion for leave to take discovery

will be granted.
III.
For the reasons stated above, the motion for leave to take
discovery (#5) is granted.

The plaintiff may serve immediate

discovery on Armstrong Cable Services, Com Net, Comcast Cable,
EarthLink, Frontier Communications, WideOpenWest, and One
Communications Corporation and on any later-discovered unknown or
intermediary ISPs to obtain the identity of each Doe defendant by
serving a Rule 45 subpoena seeking documents including the name,
addresses and telephone numbers, e-mail addresses and Media
Access Control addresses for each defendant.

The disclosure of

this information is ordered pursuant to 20 U.S.C. §1232g(b)(2)(B)
where applicable to educational institutions.

Any such

information disclosed may be used by plaintiff solely for the
purpose of protecting plaintiff’s rights under the Copyright Act.

/s/ Terence P. Kemp
United States Magistrate Judge

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