The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER GRANTING MOTION TO ALLOW PLAINTIFF LEAVE TO TAKE IMMEDIATE DISCOVERY AND DENYING AS MOOT MOTION TO TREAT MOTION AS EMERGENCY MOTION [Doc. Nos. 3, 4]
Plaintiff Liberty Media Holdings dba Corbin Fisher ("Liberty Media") produces, markets and distributes adult entertainment products. The products include photographs and videos that it publishes on its websites, DVDs and books, and licenses to third party publishers for a fee. Members pay Liberty Media a monthly fee to access its website so they can view Liberty Media's photographic and audiovisual works. Liberty Media filed a complaint against Sixty-two John Doe defendants alleging Copyright Infringement (17 U.S.C. § 501), Contributory Copyright Infringement, Conspiracy, and Negligence. Liberty Media alleges these John Doe defendants acted in a collective and interdependent manner in the unlawful reproduction and distribution of Plaintiff's Motion Picture "Down on the Farm" using BitTorrent technology. (Compl. ¶ 2.) Liberty Media claims that the Doe Defendants are "a group of BitTorrent users or peers whose computers are collectively interconnected for the sharing of a particular unique file, otherwise known as a 'swarm.'" (Compl. ¶ 13.) Liberty Media does not know the names of the John Doe defendants, but does know their respective Internet Protocol (IP) addresses. (Complaint ¶¶ 11, 18-204).
The Complaint alleges: "The Court has personal jurisdiction over Defendants, as Defendants either reside in, solicit, transact, or are doing business within the Jurisdiction; they have committed to [sic] unlawful and tortious acts both within and outside the Jurisdiction with the full knowledge that their acts would cause injury in this Jurisdiction." (Complaint ¶ 6.). The Complaint also states that venue is proper: "Although the true identities of each and every member of the collective formed by the Defendants is unknown to the Plaintiff at this time, on information and belief, each Defendant may be found in this District and/or a substantial part of the infringing acts complained of herein occurred in this District, and Defendants can reasonably anticipate being haled into court in this District." (Complaint ¶ 9.)
Nine days after filing the complaint, Liberty Media filed this motion to take immediate discovery. Liberty Media seeks a court order allowing it to issue subpoenas to the John Doe Defendants' Internet Service Providers (ISPs) requesting the defendants' personally identifiable information. Liberty Media asks that the court's order instruct these ISPs and cable operators--specifically Charter Communications, Clearwire Corporation, Comcast Cable, Cox Communications, Earthlink, Insight Communications Company, Qwest Communications, RCN Corporation, Time Warner d/b/a Road Runner, and Verizon Internet Services --to produce any and all documents and/or information sufficient to identify the user or users of the identified IP addresses during the dates and times listed in the exhibit to Liberty Media's complaint.
For good cause shown, and with the restrictions described in this Order, the court GRANTS Liberty Media's motion. Liberty Media also filed a Motion to treat the pending motion as an emergency motion. [Docket No. 4.] The Motion to treat the Motion for Discovery as an Emergency Motion is Denied as Moot.
The Cable Privacy Act prohibits cable operators from disclosing personally identifiable information regarding subscribers without either (1) the prior written or electronic consent of the subscriber; or (2) a court order, provided the cable operator provides the subscriber with notice of the disclosure. 47 U.S.C. § 551(c)(1),(c)(2)(B). A cable operator is defined as "any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system." 47 U.S.C. § 522(5). Accordingly, Liberty Media seeks a court order instructing the ISPs to produce documents and information sufficient to identify the users of the IP addresses.
B. Traditional Test for Early Discovery
Normally a party may not seek discovery from any source before the Rule 26(f) conference, unless that party obtains a stipulation or court order to conduct the discovery. Fed. R. Civ. P. 26(d)(1). A court order allowing the discovery may be appropriate "where the need for the discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). The Semitool court rejected a more rigid approach in favor of a good cause test that allows the court to exercise its traditional wide discretion in managing discovery and to consider the interests of justice. Id. at 275-76.
While discovery normally only takes place after a defendant has been served, where the alleged tortious activity occurs entirely on-line, "[s]ervice of process can pose a special dilemma for plaintiffs. . . . because the defendant may have used a fictitious name and address in the commission of the tortious acts." Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). In determining whether a motion for expedited discovery should be granted to identify anonymous Internet users named as John Doe defendants, courts consider whether:
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;"and
3. the "plaintiff's suit against defendant could withstand a motion to dismiss." at 578-580.
1. Identification of Defendants.
Liberty Media provides the court with the unique IP addresses and names of the ISPs and/or cable operators that provided internet access for the users of the identified IP addresses. (Complaint at ¶¶ 18-204.) Liberty Media documented the alleged infringement of its registered works by the individuals using the IP addresses. The requested discovery will provide the true names and addresses of the individuals performing the alleged infringing acts. The court finds that Liberty Media has sufficiently identified each ...