The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
ORDER GRANTING PLAINTIFF'S REQUEST FOR IMMEDIATE
On August 31, 2010, Plaintiff filed a complaint alleging violations for copyright infringement. (Doc. No. 1). On October 27, 2010, Plaintiff submitted a motion seeking permission to take early discovery for the limited purpose of facilitating service of process. (Doc. No. 3). Plaintiff's request for an order is sought for the purpose of ascertaining the identities of certain "Doe" defendants. Specifically, Plaintiff seeks to subpoena Comcast Cable (in its capacity as an Internet Service Provider) 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.
"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 (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, 430 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 documented" as infringing on its copyrighted works. (Pl's Mtn. at ¶ 9). Thus, as real persons/entities, 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. Fl. 1998)). Here, Plaintiff previously issued subpoenas directed at Google requesting all relevant information pertaining to Pornilove's Google-supported blog. (Pl.'s Mtn. at ¶ 3). Based on a search utilizing the information received from Google, Plaintiff discovered that Comcast Cable is the relevant Internet Service Provideer for the two IP addresses linked to the copyright infringement. (Id. at ¶9). Because these are online transactions, occurring solely over the Internet, Plaintiff is not aware of any other practical way to identify the Doe Defendants--the infringing users--other than through an order mandating the production of the information by the Internet Service Provider. (Id. at ¶ 10). In other words, these Does have proven to be elusive and Plaintiff knows of no other avenue available to access this information except through Comcast.
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);
(Compl. at ¶¶ 14-17). Specifically, Plaintiff claimed: (1) it owns and
has registered the copyrighted works 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, its suit against Defendant could
withstand a motion to dismiss.
Thus, Plaintiff has adequately satisfied the three-factor test. 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.
The Internet Service Provider shall have seven (7) days after service of the subpoenas to notify the subscriber/s their identity 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.
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