Glacier Films (USA), Inc. et al v. Doe-24.21.98.129
Filing
11
OPINION AND ORDER. The Court GRANTS Plaintiffs' motion for the issuance of a Rule 45 subpoena 8 , and authorizes Plaintiffs to depose the Subscriber. Plaintiffs' counsel has agreed to limit the deposition to no more than two hours. IT IS SO ORDERED. Signed on 8/3/2015 by Magistrate Judge Stacie F. Beckerman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GLACIER FILMS (USA), INC.,
and GLACIER FILMS 1, LLC,
Plaintiffs,
Case No. 3:15-cv-00975-SB
OPINION AND
ORDER
v.
DOE-24.21.98.129,
Defendant.
BECKERMAN, Magistrate Judge.
Plaintiffs Glacier Films (USA), Inc. (“Glacier Inc.”) and Glacier Films 1, LLC (“Glacier
LLC”) (collectively, “Plaintiffs”) bring this copyright infringement action against an individual who
allegedly copied and published the motion picture American Heist (“the Movie”) through the
BitTorrent network. Glacier Inc. and Glacier LLC are the registered copyright holders of the
completed motion picture and screenplay, respectively. Plaintiffs initiated the present action against
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a Doe defendant who is indentified only by the internet protocol address of 24.21.98.129 (“the IP
address”).
On June 4, 2015, the Court granted Plaintiffs’ ex parte motion to expedite discovery for
purposes of identifying the account holder assigned to the IP address used by the Doe defendant.
After issuing a subpoena to the Internet Service Provider, Comcast, in accordance with this Court’s
Order (ECF No. 5), Plaintiffs successfully identified a singular subscriber assigned to the IP address
used by the Doe defendant (the “Subscriber”). However, Plaintiffs have not yet been able to identify
the infringer. Two letters have been dispatched to the Subscriber without response, and Plaintiffs do
not have a phone number or other means of contacting the Subscriber.
Plaintiffs now move, pursuant to Federal Rule of Civil Procedure (“Rule”) 45, for leave to
serve a subpoena upon a non-party, commanding the non-party Subscriber to attend a deposition.1
Rule 45(a)(1)(A)(iii) “authorizes the issuance of a subpoena to command a nonparty to attend and
testify at a deposition or produce designated documents, electronically stored information, or
tangible things in its possession, custody or control.” Voltage Pictures, LLC v. Doe-50.141.97.4, No.
3:14-cv-1872-AC, 2015 WL 1579533, at *4 (D. Or. Apr. 9, 2015) (granting the plaintiffs’ motion
to authorize a Rule 45 subpoena to depose a subscriber in connection with alleged infringement
activity). “A party or attorney responsible for issuing and serving a subpoena must take reasonable
steps to avoid imposing undue burden or expense on a person subject to the subpoena.” FED. R. CIV.
P. 45(d)(1).
1
Plaintiffs are seeking court approval to conduct non-party discovery prior to satisfying the
Rule 26 meet and confer requirements, because they cannot satisfy that requirement prior to
identifying the Doe defendant.
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“The Ninth Circuit allows a plaintiff to engage in discovery to identify Doe defendants when
the identity of such defendants is not known prior [to] the filing of a complaint.” Voltage Pictures,
2015 WL 1579533, at *4 (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). The same
is true for “plaintiffs who have failed to identify any defendant and must, therefore, engage in
non-party discovery to determine the identity of the proper defendants.” Id. (citing Cottrell v.
Unknown Corr. Officers, 1-10, 230 F.3d 1366, 1366 (9th Cir. 2000)). The Ninth Circuit has devised
a two-part test for determining when courts should allow discovery to identify an unknown
defendant: “Where the identity of alleged defendants will not be known prior to the filing of a
complaint[,] . . . the plaintiff should be given an opportunity . . . to identify the unknown defendants,
unless it is clear that discovery would not uncover the identities, or that the complaint would be
dismissed on other grounds.” Id. (quoting Gillespie, 629 F.2d at 642). Other factors to consider
include whether the Doe defendant has been “identified with ‘sufficient specificity such that the
Court can conclude that [the] Defendant is a real person or entity that would be subject to the Court’s
jurisdiction,’” and whether the plaintiff has identified “all previous steps taken to locate the elusive
defendant.” Id. (citation omitted).
The above factors weigh in favor of granting Plaintiffs’ motion for leave to serve a subpoena
on the Subscriber. As an initial matter, it seems likely that the requested discovery will uncover the
identity of the individual who is responsible for allegedly copying and publishing the Movie, and has
no reason to believe that Plaintiffs’ complaint would be dismissed on other grounds. Cf. Voltage
Pictures, 2015 WL 1579533, at *5-6 (“Even assuming [a recent decision from a judge in this district]
requires the dismissal of Plaintiffs’ state trademark claim, Plaintiffs’ claim under the federal
Copyright Act would survive. Accordingly, the complaint would not be dismissed on other grounds
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in its entirety.”). Furthermore, Plaintiffs have identified the Doe defendant with sufficient specificity
for the Court to conclude that the Doe defendant is a real person who would be subject to the Court’s
jurisdiction. Indeed, the Court would have subject matter jurisdiction over Plaintiffs’ federal
copyright claim, and Plaintiffs represent that the claim would be linked to a subscriber with an
Oregon IP address. Finally, Plaintiffs have offered a sufficient description of the previous steps taken
to identify the infringer, by identifying the IP address and the general location, nature, and extent of
the allegedly infringing activity in the complaint. See id. at *5 (“requirement met where a plaintiff
has ‘already taken steps to identify the IP addresses and general physical locations.’” (quoting
Rynoryder Prods., Inc. v. Does 1-23, No. 6:13-cv-539-TC, 2013 WL 2146456, at *2 (D. Or. May
14, 2013))).
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for the issuance of a Rule
45 subpoena (ECF No. 8), and authorizes Plaintiffs to depose the Subscriber. Plaintiffs’ counsel has
agreed to limit the deposition to no more than two hours.
IT IS SO ORDERED.
Dated this 3rd day of August, 2015.
STACIE F. BECKERMAN
United States Magistrate Judge
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