Liberty Media Holdings LLC v. John Does 1-3

Filing 6

ORDER signed by Judge Rudolph T Randa on 05/03/2011 granting 2 Motion for Early Discovery. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LIBERTY MEDIA HOLDINGS, LLC,
Plaintiff,
Case No. 11-C-394
-vsSWARM OF November 27, 2010 to January 31, 2011,
SHARING HASH FILE
A3E6F65F2E3D672400A5908F64ED55B66A0880B8,
AND DOES 1 through 3,
Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR EARLY DISCOVERY

The Court, having read all papers filed in connection with the plaintiff’s
Motion for Early Discovery [D. 2], having considered the issues raised therein, including the
requirements of the Cable Privacy Act, 47 U.S.C. § 551, plaintiff’s Motion for Early
Discovery is GRANTED.
On April 22, 2011, plaintiff filed a Complaint alleging violations for copyright
infringement against Doe Defendants 1 through 3 [D. 1]. On April 22, 2011, plaintiff
submitted a motion seeking permission to take early discovery for the limited purpose of
identifying these Doe Defendants. [D. 2]. Specifically, plaintiff seeks to subpoena Time
Warner Cable d/b/a Road Runner and Comcast Cable, in its capacity as an Internet Service
Provider (“ISP”), to determine the names and addresses of certain subscribers connected to
certain IP addresses that have been linked to infringements of plaintiff’s copyrighted works.
Additionally, plaintiff seeks permission to then issue interrogatories to and depose the

subscribers identified by these ISPs in order to determine whether the subscriber is the proper
defendant in this action.
“As a general rule, discovery proceedings take place only after the defendant
has been served; however, in rare cases, courts have made exceptions, permitting limited
discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying
facts necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com,
185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th
Cir. 1980)). These requests are allowed upon a showing of good cause. Semitool, Inc. v.
Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 2 (N.D. Cal. 2002). Within the internet
context, Courts have recognized “[s]ervice of process can pose a special dilemma for
plaintiffs in cases . . . [where] the tortious activity occurred entirely online.” Seescandy.com,
185 F.R.D. at 577.
A three-factor test has been developed for instances where courts are
considering motions requesting early discovery to assist in the identification of certain
defendants. Seescandy.com, 185 F.R.D. at 578-80. Factor 1: The moving party should be
able to 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.”
Seescandy.com, 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express
Co., 556 F.2d 406, 420 n.24 (9th Cir. 1977)). Here, given the facts shown, plaintiff has
identified the missing party(s) with as much clarity as possible. Plaintiff has stated that these
missing “Does” are persons or entities and that these person/entities have been observed and

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documented as infringing on its copyrighted works. Thus, as real persons/entitles, these
Does can be sued in federal court.
Factor 2: The moving party should be able to identify “all previous steps taken
to locate the elusive defendant.” Seescandy.com, 185 F.R.D. at 578 (citing Plant v. Doe, 19
F. Supp. 2d 1316, 1320 (S.D. Fla, 1998)). The only information plaintiff has regarding the
defendants is his/her IP address and his/her cable ISP. Therefore, there are no other
measures plaintiff could take to identify the defendants other than to obtain his/her
identifying information from his/her ISP. Consequently, plaintiff must serve subpoenas on
defendants’ ISPs to obtain the information it seeks.
Factor 3: The moving party should be able to “establish to the Court’s
satisfaction that [its] suit against defendant could withstand a motion to dismiss.”
Seescandy.com, 185 F.R.D. at 578 (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980)). Here, Plaintiff, has alleged a prima facie claim of copyright infringement. 17 U.S.C.
§ 106(1)(3). Specifically, plaintiff claimed: (1) it owns and has registered the copyrighted
work at issue in this case; (2) the defendants reproduced and distributed those works without
authorization; and (3) plaintiff was damaged by defendants’ actions. Accordingly, since
plaintiff has alleged all the elements of copyright infringement in the Complaint [D. 1], its
suit against defendants could withstand a motion to dismiss.
Plaintiff has also alleged a prima facie case of contributory copyright
infringement. Plaintiff claimed (1) it owns and has registered the copyrighted work at issue
in this case; (2) defendants knew of the infringing activity and were conscious of their

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infringement; and (3) defendants actively participated in this infringement by inducing,
causing and contributing to the infringement of plaintiff’s copyright work. As each element
has properly been alleged by the plaintiff in its Complaint [D. 1], this cause of action could
withstand a motion to dismiss.
Thus, plaintiff has adequately satisfied the three-factor test for the claims raised
in the Complaint. Furthermore, the scope of this order has been sufficiently tailored to
achieve the reasonable and necessary purpose of identifying already known alleged
offenders. In sum, the Court finds good cause to grant plaintiff the relief it seeks.
Each Internet Service Provider shall have seven (7) days after service of the
subpoenas to notify the subscriber(s) that their identity(y/ies) has been subpoenaed by
plaintiff. Each subscriber whose identity has been subpoenaed shall have twenty-one (21)
calendar days from the date of such notice to file a responsive pleading or motion to quash.
Thereafter, upon receipt of the subscriber’s information from the ISP, the
plaintiff may send written discovery requests to the relevant subscriber and may take the
subscriber’s deposition, if necessary.
IT IS SO ORDERED:
Dated at Milwaukee, Wisconsin, this 3rd day of May, 2011.
BY THE COURT

s/ Rudolph T. Randa
HON. RUDOLPH T. RANDA
U.S. District Judge

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