ME2 Productions, Inc. v. Does 1-8
ORDER granting 3 Motion for Discovery. Signed by Magistrate Judge Kimberly A. Jolson on 4/24/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
ME2 PRODUCTIONS, INC.,
Civil Action 2:17-cv-342
Judge James L. Graham
Magistrate Judge Jolson
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Ex Parte Application for Leave to Take
Discovery Prior to the Rule 26(f) Conference.
For the followings reasons, the
Application for Leave will be GRANTED.
This is a copyright infringement case involving the file transfer technology known as
BitTorrent. (See Doc. 1). It is alleged that through BitTorrent, also known as peer-to-peer file
sharing, the motion picture Mechanic: Resurrection, to which Plaintiff holds the exclusive
copyright, “is being pirated and trafficked in the BitTorrent network and is being illegally
downloaded and distributed countless times worldwide with many confirmed instances of
infringing activity traced to Ohio.” (Id. at ¶ 12). According to the Complaint, BitTorrent “has
become one of the most common systems for users to illegally dispense huge amounts of data,
including motion pictures, in digital format.” (Id. at ¶ 23).
Defendants are identified in the Complaint as Does 1-8, because they are known only by
their Internet Protocol (“IP”) addresses, their Internet Service Provider (“ISP”), and the date and
time of the infringement. (See Doc. 1-2). Accordingly, Plaintiff seeks to conduct limited
discovery of the relevant non-party ISPs to which Defendants subscribe, prior to the Rule 26(f)
conference, to determine the identities of the Doe Defendants. (Doc. 3 at 3). In its Motion,
Plaintiff alleges that “this information is readily available to the ISPs from documents they keep
in the regular course of business.” (Id.).
Plaintiff ultimately seeks an Order from this Court allowing it to serve Rule 45 subpoenas
on the ISPs requesting the relevant identifying information. (Id.). If the ISPs cannot identify one
or more of the Doe Defendants, but can identify an intermediary ISP as the entity providing
online services and/or network access to any such Defendant, Plaintiff seeks to serve a subpoena
on that ISP requesting similar identifying information for the relevant Doe Defendants. (Id.).
Rule 26(d) of the Federal Rules of Civil Procedure 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 a court order. Malibu
Media, LLC v. Doe, No. 2:14-CV-463, 2014 WL 12586325, at *1 (S.D. Ohio May 22, 2014).
Consequently, a district court has the discretion to permit discovery prior to a Rule 26(f)
conference. Id. (citing Qwest Communs. Int'l Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418,
419 (D. Colo. 2003). Before allowing this discovery, “ [ c ] ourts within the Sixth Circuit require a
showing of good cause.” Id. (citing Tesuco Holdings Ltd. v. Does 1-12, No. 3:12-cv-600, 2012
WL 6607894 (E.D. Tenn. December 18, 2012).
Good cause can 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.” Id. (quoting Best v. Mobile Streams, Inc., No. 1:12-cv564, 2012 WL 5996222, *1 (S.D. Ohio Nov. 30, 2012); Arista Records, LLC v. Does 1-9, No.
2:07-cv-450, 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. (citing Mobile Streams, Inc., 2012 WL 5996222, at *1).
Plaintiff argues that is has demonstrated good cause. Plaintiff asserts it had a valid
copyright to the motion picture, and through the use of Maverickeye, a provider of online antipiracy services for the motion picture industry, has been monitoring the copyright infringement
activities. (Doc. 3 at 10). Additionally, Plaintiff states that “ISPs typically retain user activity
logs containing the information sought for only a limited period of time before erasing data” and,
without this data, “Plaintiff will have no ability to identify the Defendants and thus will be
unable to pursue its lawsuit to protect its copyrighted work.” (Id. at 12). Finally, it appears that
the discovery requests are narrowly-tailored because Plaintiff is seeking identifying information
only connected with the IP addresses at the exact date and time of the violation, listed in Exhibit
2 of the Complaint. (See Doc. 1-2).
Further, Plaintiff argues that courts throughout the country “routinely allow discovery to
identify ‘Doe’ defendants” in situations like this one. (Doc. 3 at 3). In addressing a similar
argument by Plaintiff in another BitTorrent case, a court noted “this is generally true” and
“Courts within the Sixth Circuit have found good cause and granted motions for expedited
discovery in such actions as well.” Malibu Media, LLC, 2014 WL 12586325, at *2. The same
Court also opined as follows:
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 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
Id. at *2 (citing Vision Films, Inc. v. Does 1-16, No. 3:12-cv-644, 2013 WL 1385203, at *2.
(E.D. Tenn. Apr. 3, 2013)).
As noted previously, Plaintiff has provided the IP addresses assigned to each Doe
Defendant, the relevant ISP, as well as the date and time of the violations at issue. This, coupled
with the fact that the proposed discovery would likely lead to information regarding the identity
of the Defendants, weighs in favor of allowing discovery to move forward.
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.
Malibu Media, LLC, 2014 WL 12586325, at *2 (citing Malibu Media, LLC v. John Does 1-23,
2012 WL 1144822, *2 (D. Colo. Apr. 4, 2012)). Finally, there is no indication that the Doe
Defendants would be prejudiced by allowing the limited discovery sought. Consequently, the
Court will allow Plaintiff to move forward with discovery.
For the reasons stated above, Plaintiff’s Ex Parte Application for Leave to Take
Discovery Prior to the Rule 26(f) Conference (Doc. 3) is GRANTED. Plaintiff may serve
limited, immediate discovery on the ISPs identified in Doc. 1-2, or from later-discovered
intermediary ISPs, by serving a Rule 45 subpoena seeking documents including the name,
current and permanent addresses, telephone numbers, email addresses, and Media Access
Control addresses for each Doe Defendant.
The disclosure of this information is ordered
pursuant to 47 U.S.C. § 551(c)(2)(B). Any such information disclosed may be used by Plaintiff
solely for the purpose of protecting Plaintiff’s rights under the Copyright Act.
IT IS SO ORDERED.
Date: April 24, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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