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Patrick Collins, Inc v. John Does

October 12, 2011

PATRICK COLLINS, INC., PLAINTIFF,
v.
JOHN DOES 1-51,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge

ORDER GRANTING MOTION [DOC. NO. 3]

FOR EARLY DISCOVERY

Before the Court is Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to Rule 26(f) Conference. (Doc. No. 3) Having reviewed the motion and supporting documents, and having considered the requirements of the Cable Act, 47 U.S.C. § 551, Plaintiff's Motion for Early Discovery is GRANTED.

Background

On September 15, 2011, Plaintiff filed a complaint alleging direct and contributory copyright infringement against John Doe defendants. (Doc. No. 1). The complaint alleges that the John Doe defendants participated in a peer-to-peer Internet network using Bit Torrent technology in order illegally to download and share a copywrited work. As provided in the instant Motion, Plaintiff has obtained the Internet Protocol ("IP") addresses of the John Doe defendants allegedly involved in the infringing activity and, using publicly available search tools, has traced the IP addresses to physical addresses within this District and has identified the Internet Service Providers ("ISPs") which leased the involved IP addresses to subscribers. Id.

On September 20, 2011, Plaintiff filed the instant Motion seeking permission to take early discovery from the identified ISPs for the limited purpose of identifying the subscribers of the identified IP addresses on the date and time in question. (Doc. No. 3).

Legal Standard

Federal Rule of Civil Procedure 26(d) states:

"A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order."

In the instant case, Plaintiff may only use expedited discovery by court order. In this Circuit, the courts must find "good cause" to determine whether to permit discovery prior to the Rule 26(f) conference. Good cause exists where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. See, e.g., Arista Records, LLC v. Does 1-43, 2007 WL 4538697 *1 (S.D. Cal. 2007).

In infringement cases involving the Internet, good cause is often found by the courts where the party seeking expedited discovery of a Doe defendant's identity establishes the following:

1. A prima facie case of infringement;

2. That there is no other way to identify the Doe defendant; and,

3. That there is a risk that the ISP will destroy its logs prior to the Rule 26(f) conference. See UMG Recordings, Inc. v. Doe, 2008 WL 4104214 *4 ...


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