UN4 Productions, Inc. v. Does 1-11

Filing 5

ORDER granting 4 Motion for Discovery. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/9/2017. (kdp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UN4 PRODUCTIONS, INC.,
Plaintiff,
Case No. 2:17-cv-492
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

DOES 1–11,
Defendants.

ORDER
Plaintiff brings this action against Does 1–11, alleging that by using the BitTorrent file
distribution network, Defendants engaged in copyright infringement of Plaintiff’s copyrighted
motion picture in violation of the United States Copyright Act, 17 U.S.C. § 101 et seq. This
matter is before the Court for consideration of Plaintiff’s Ex Parte Application for Leave to Take
Discovery Prior to Rule 26(f) Conference. (ECF No. 4.) Through this Motion, Plaintiff seeks to
conduct limited discovery from non-party internet service providers (“ISPs”) in order to
determine Defendants’ identities and contact information. For the reasons that follow, Plaintiff’s
Motion is GRANTED.
Federal Rule of Civil Procedure 26 governs the timing and sequence of discovery. Rule
26(d) provides as follows:
(1) Timing. A party may not seek discovery from any source before the parties
have conferred as required by Rule 26(f), except in a proceeding exempted from
initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order. . . .

(3) Sequence. Unless the parties stipulate or the court orders otherwise for the
parties’ and witnesses’ convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its
discovery.
Fed. R. Civ. P. 26(d). Thus, Rule 26(d) vests the district court with discretion to order expedited
discovery. Lemkin v. Bell’s Precision Grinding, No. 2:08-CV-789, 2009 WL 1542731, at *1
(S.D. Ohio June 2, 2009) (citing Qwest Communs. Int’l, Inc. v. Worldquest Networks, Inc., 213
F.R.D. 418, 419 (D. Colo. 2003)). Courts considering motions for expedited discovery typically
apply a good cause standard. Lemkin, 2009 WL 1542731, at *2 (citations omitted). The burden
of demonstrating good cause rests with the party seeking the expedited discovery. Id. (citation
omitted). The moving party may establish good cause by demonstrating that “‘the need for
expedited discovery, in consideration of the administration of justice, outweighs the prejudice to
the responding party.’” Id. (quoting Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273,
276 (N.D. Cal. 2002)). “Good cause is often found in cases alleging infringement, unfair
competition, or where evidence may be lost or destroyed with time.” Arista Records, LLC v.
Does 1-15, No. 2:07-cv-450, 2007 WL 5254326, at *2 (S.D. Ohio May 17, 2007) (citation
omitted). Finally, the scope of the requested discovery is also relevant to a good cause
determination. Lemkin, 2009 WL 1542731, at *2 (citation omitted).
In the instant case, the Court concludes that good cause exists to permit the limited
expedited discovery Plaintiff seeks. Plaintiff has established that it needs to conduct the
requested discovery in order to learn Defendants’ identities so that it may timely effect service
under Federal Rule of Civil Procedure 4(m). In addition, without the discovery, there is a
significant risk that the ISPs could delete or destroy the information Plaintiff needs to identify

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Defendant. See, e.g., Arista Records, 2007 WL 5254326 at *4 (finding good cause to permit
expedited discovery from ISP in copyright action based, in part, upon the recognition of that
ISPs may only retain the relevant information for a limited time). Finally, the scope of discovery
Plaintiff requests is narrowly tailored to obtain Defendants’ names, addresses, e-mail addresses,
and telephone numbers.
Accordingly, Plaintiff’s Motion (ECF No. 4) is GRANTED. Plaintiff may serve
subpoenas upon Defendants’ ISPs commanding disclosure of Defendants’ identifying
information, including names, addresses, e-mail addresses, and telephone numbers pursuant to
47 U.S.C. § 551(c)(2)(B). Plaintiff may also serve subpoenas upon later-discovered intermediary
ISPs. The disclosure of this information is ordered pursuant to 20 U.S.C. § 1232g(b)(2)(B)
where applicable to educational institutions. Plaintiff may utilize the information obtained
through the subpoena solely for the purpose of protecting its rights under United States
Copyright Act.
IT IS SO ORDERED.

Date: June 9, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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