Criminal Productions Inc v. Doe 1 et al

Filing 10

ORDER granting 5 Motion to Expedite by Judge Richard A Jones.(SSM)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CRIMINAL PRODUCTIONS, INC.,

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Plaintiff,
Case No. C17-102-RAJ
v.
ORDER
DOES 1-8,

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Defendants.

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This matter comes before the Court on Plaintiff Criminal Productions, Inc.’s

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(“Criminal Productions”) Ex Parte Motion for Expedited Discovery. Dkt. # 5. These

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motions are substantially identical to those filed in four similar cases currently pending

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before the Court. See, e.g., Case No. 16-729-RAJ, Dkt. # 5; Case No. 16-860-RAJ, Dkt.

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# 5; Case No. 16-1016-RAJ, Dkt. # 5, Case No. 16-1177-RAJ, Dkt. # 5. The Court

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granted those motions and will do the same here.

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This case involves alleged copyright infringement over the BitTorrent protocol.1

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Plaintiff is the holder of a copyright for the motion picture Criminal, Registration No. PA

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1-984-029. See Compl. ¶ 6, Ex. A. Based on its investigation, Plaintiff has concluded

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that various IP addresses (each associated with a Doe defendant) have engaged in peer-

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to-peer sharing of Criminal over BitTorrent. See id. ¶¶ 10-12. As a result, Plaintiff

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brings claims of copyright infringement. See id. ¶¶ 25-35.

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Patrick Collins, Inc. v. John Does 1-21, 282 F.R.D. 161 (E.D. Mich. 2012) provides a
detailed description of the BitTorrent protocol.

ORDER – 1

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Plaintiff now requests permission to serve subpoenas on Internet service providers

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(“ISPs”) seeking information sufficient to identify each Doe defendant pursuant to

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Federal Rule of Civil Procedure 45. Dkt. # 5 at 7.

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Fed. R. Civ. P. 26(d) provides that absent a court order or other authorization, “[a]

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party may not seek discovery from any source before the parties have conferred as

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required by Rule 26(f).” This includes non-parties as well as parties and therefore

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encompasses subpoenas on non-parties. See Deuss v. Siso, No. 14-CV-00710-

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YGR(JSC), 2014 WL 4275715, at *4 (N.D. Cal. Aug. 29, 2014) (quoting Villegas v.

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United States, No. 12–0001, 2012 WL 1801735, at *8 (E.D. Wash. May 16, 2012)).

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Courts have applied a “good cause” standard in evaluating requests for early

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discovery. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D.

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Cal. 2002). “Good cause exists ‘where the need for expedited discovery, in consideration

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of the administration of justice, outweighs the prejudice to the responding party.’” In re

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Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008)

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(quoting id.). In the context of determining whether there is good cause to permit

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expedited discovery to identify anonymous internet defendants, courts have considered

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whether:

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(1) the plaintiff can identify the missing party with sufficient specificity
such that the Court can determine that defendant is a real person or entity
who could be sued in federal court; (2) the plaintiff has identified all
previous steps taken to locate the elusive defendant; (3) the plaintiff’s suit
against defendant could withstand a motion to dismiss; and (4) the plaintiff
has demonstrated that there is a reasonable likelihood of being able to
identify the defendant through discovery such that service of process would
be possible.
Third Degree Films, Inc. v. Does 1-131, 280 F.R.D. 493, 499 (D. Ariz. 2012) (quoting
New Sensations, Inc. v. Does 1-1,474, No. C11-2770 MEJ, 2011 WL 4407222 at *1
(N.D. Cal. Sept. 22, 2011)); see also Columbia Ins. Co. v. Seescandy.com, 185 F.R.D.
573, 578-80 (N.D. Cal. 1999).
ORDER – 2

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The Court finds that these factors have been met here and that Plaintiff has shown
good cause.
With respect to the first and second factors, Plaintiff has identified the Doe

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defendants based on their respective IP addresses. Plaintiff has engaged a German

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company that provides forensic investigation services for copyright owners. See Dkt. # 6

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(Arheidt Decl.) ¶ 2. A consultant for that company states that he used proprietary

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software to capture and record the IP addresses of all BitTorrent users who connected to a

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swarm sharing the film Criminal. Id. ¶¶ 10, 14-19. Based on a visual inspection of the

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file and a comparison of the “hash checksum,” the consultant determined that the

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BitTorrent users were copying and distributing pieces of Criminal. See id. ¶¶ 15, 17-19.

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The consultant then compiled a list of IP addresses along with the date and time those IP

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addresses connected to the swarm and distributed BitTorrent “pieces” to the monitoring

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system. See id. ¶¶ 19-20. These IP addresses are sufficiently specific to determine that

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the Doe defendants are real persons whose names may be known to their ISP and who

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can be sued in federal court. See Cobbler Nevada, LLC v. Does 1-32, No. C15-

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1432RSM, 2015 WL 5315948, at *3 (W.D. Wash. Sept. 11, 2015).

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Plaintiff has also sufficiently pled a prima facie case for copyright infringement.

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Plaintiff has alleged that it owns the registered copyrights at issue (see Compl. ¶¶ 5-6, Ex.

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A) and that the Doe defendants copied and distributed the copyrighted work without

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Plaintiff’s authorization (see Compl. ¶¶ 28-31). See A&M Records, Inc. v. Napster, Inc.,

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239 F.3d 1004, 1014 (9th Cir. 2001).

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Some courts at this stage have, however, severed and dismissed all Doe defendants

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but the first, finding that these defendants were not properly joined. See Third Degree

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Films, 280 F.R.D. at 499. This Court will not take this drastic step in this particular case.

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More recently, courts have held that joinder of multiple Doe defendants may be

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permissible in similar BitTorrent cases only if plaintiffs can show that the defendants

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participated in the same swarm at or near the same time. See AF Holdings, LLC v. Does

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ORDER – 3

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1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014); In re BitTorrent Adult Film Copyright

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Infringement Cases, 296 F.R.D. 80, 91 (E.D.N.Y. 2012); see also Hard Drive Prods., Inc.

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v. Does 1-188, 809 F. Supp. 2d 1150, 1164 (N.D. Cal. 2011). This concern is not present

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in the instant case. The IP addresses identified in the complaint appear to have

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participated in the same swarm roughly within a few days or hours of each other. See

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Compl. Ex. B.
Finally, Plaintiff notes that ISPs typically retain user activity logs identifying their

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subscribers. See Dkt. # 6 (Arheidt Decl.) ¶ 12. Once provided with the relevant IP

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address and the date and time of the allegedly infringing activity, ISPs can use their

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subscriber logs to identify the relevant information necessary to identify the subscriber.

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Id. ¶¶ 12-13.
As Plaintiff has shown good cause, the Court will GRANT the motion. Dkt. # 5.

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The Court permits Plaintiff to issue subpoenas pursuant to Federal Rule of Civil

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Procedure 45 on ISPs seeking information sufficient to identify each Doe defendant,

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including his or her name, telephone number, address, and email address. An ISP served

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with a subpoena authorized by this Order shall give written notice (including email

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notice) and a copy of the subpoena to any affected subscriber as soon as possible after

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service of the subpoena. The ISP shall provide Plaintiff with the date when such notice

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was provided to any affected subscriber. The ISP and any affected subscriber shall have

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thirty (30) days from the date of service of the subpoena on the ISP to object to the

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subpoena pursuant to Federal Rule of Civil Procedure 45(d)(2)(B). The ISP shall not

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disclose Defendants’ identifying information during the 30-day period or if a timely

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objection is served unless and until the Court orders it to do so. If an objection is served,

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the ISP shall preserve any material responsive to the subpoena for a period of no less than

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ninety (90) days in order to allow Plaintiff to move for an order compelling production

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ORDER – 4

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under Federal Rule of Civil Procedure 45(d)(2)(B)(i). If no objection is served, the ISP

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shall comply with the subpoena within ten (10) days.

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DATED this 7th day of February, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 5