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First Time Videos, LLC v. John Doe

February 7, 2012

FIRST TIME VIDEOS, LLC, PLAINTIFF,
v.
JOHN DOE, DEFENDANT.



ORDER

Presently before the undersigned is plaintiff's renewed ex parte application for leave to take expedited discovery prior to the Rule 26 conference. Dckt. No. 10. Plaintiff's earlier application for leave to take expedited discovery was granted in part and denied in part, so plaintiff has now renewed that application in an effort to address the concerns raised by the court in the order on the initial application. See Dckt. Nos. 7, 9.

I. BACKGROUND

Plaintiff, a producer of adult entertainment content, filed this action against defendant John Doe, alleging claims for copyright infringement, civil conspiracy, and contributory infringement. See generally First Am. Compl., Dckt. No. 6. Plaintiff's amended complaint alleges that "John Doe and his co-conspirators . . . knowingly and illegally, reproduced and distributed Plaintiff's work [an adult entertainment video], and materially contributed to the infringing conduct by acting in concert via the BitTorrent file sharing protocol and, upon information and belief, continue to do the same." Id. ¶ 1. Plaintiff alleges that "[t]he identities of John Doe and his co-conspirators are unknown to Plaintiff" and instead "are known to Plaintiff only by an Internet Protocol address ("IP address"), which is a number assigned to devices, such as computers, connected to the Internet." Id. ¶ 4. Plaintiff asserts that "[i]n the course of monitoring Internet-based infringement of its copyrighted content, Plaintiff's agents observed unlawful reproduction and distribution occurring among the IP addresses listed on Exhibit A[, which is attached to the amended complaint,] via the BitTorrent protocol." Id. Plaintiff contends that it "cannot ascertain the identities of John Doe or his coconspirators without information from their respective Internet Service Providers ("ISPs")." Id.

On January 12, 2012, plaintiff filed its initial ex parte application seeking leave to take expedited discovery prior to the Rule 26 conference in order to obtain the identities of John Doe and his co-conspirators. Dckt. No. 7; see also Hansmeier Decl., Dckt. No. 7-1. Specifically, plaintiff sought to issue subpoenas to the various ISPs used by John Doe and his co-conspirators (each of whom is identified by a unique Internet Protocol ("IP") address, which corresponds to the date and time of allegedly infringing activity). Hansmeier Decl., ¶¶ 20, 25-26. Plaintiff argued that it has gathered evidence of the infringing activities, id. ¶¶ 16-27, and that when presented with an IP address and the date and time of infringing activity, an ISP can identify the name and address of the ISP's subscriber because that information is contained in the ISP's subscriber activity log files. Id. ¶ 22. However, plaintiff also argued that "ISPs typically keep log files of subscriber activities for only limited periods of time-sometimes for as little as weeks or even days-before erasing the data." Id. ¶¶ 22, 28-29.

According to plaintiff, good cause supported its initial application for expedited discovery because the identities of John Doe and his co-conspirators are essential to plaintiff's prosecution of its claims in this case, and the information is under imminent threat of destruction. Id. at 4-6.

Specifically, plaintiff argued that without knowing John Doe and his co-conspirators' identities, plaintiff will have no means to name and serve anyone with process and "will have no means of computing the damages that can be attributed to the conspiracy or establishing testimony from co-conspirators to aid in proving liability against John Doe and any co-conspirators who are later joined to this action," and argued that because the allegedly infringing activity occurred as far back as August, the data retained by the ISPs at issue "is on the verge of permanent destruction." Id. at 4, 5. Plaintiff also argued that the need for limited early discovery outweighs any prejudice to John Doe and his co-conspirators since the request is limited in scope (plaintiff only seeks basic contact information) and since plaintiff only intends to use the information disclosed "for the purpose of protecting its rights under the copyright laws." Id. at 6-10. Finally, plaintiff contended that ex parte relief is proper since there are no known defendants with whom to confer and plaintiff's discovery request is directed at a third party." Id. at 11-12.

On January 19, 2012, the undersigned issued an order granting plaintiff's application in part and denying it in part. Dckt. No. 9. Quoting Federal Rule of Civil Procedure 26(d)(1), the court noted that "[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." Plaintiff argued that because it does not know the identity of defendant John Doe, the parties had not yet met and conferred under Rule 26(f). Applying the "good cause" test used by courts in this Circuit, see, In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d at 1179 (quoting Semitool, Inc., 208 F.R.D. at 276), the court found that plaintiff had demonstrated an adequate basis for conducting some, but not all of the expedited discovery it sought. Dckt. No. 9.

Specifically, plaintiff has shown good cause to conduct discovery regarding the identity of John Doe, but has not shown good cause to conduct discovery regarding John Doe's alleged co-conspirators, whom plaintiff has not alleged as defendants in the amended complaint. See Dckt. No. 6 at 1, 9 (naming only one doe defendant, John Doe, and asserting that plaintiff will "seek leave of the Court to amend this complaint to join John Doe's co-conspirators as defendants . . . ."). Since John Doe is the only defendant asserted in the amended complaint, plaintiff cannot proceed with this lawsuit without obtaining John Doe's identity. UMG Recordings, Inc. v. Does 1-4, 2006 WL 1343597, at *1 (N.D. Cal. Apr.19, 2006). Additionally, as plaintiff contends in its application, there is a high risk that the ISP used by John Doe may destroy the information plaintiff seeks and thereby preclude plaintiff from discovering John Doe's true identity. Id. Further, copyright infringement claims "necessarily involve[ ] irreparable harm to Plaintiff [ ], as a copyright holder is presumed to suffer irreparable harm as a matter of law" when the ambit of its copyright is invaded. Id. Accordingly, plaintiff's request to subpoena Comcast Cable Communications (the ISP listed for John Doe in Exhibit A to the Amended Complaint) to obtain limited information needed to identify John Doe (name, addresses, telephone numbers, and email addresses) will be granted. However, because plaintiff's complaint does not purport to sue John Doe's alleged "co-conspirators" at this time, in light of the potential that some of the alleged co-conspirators are innocent internet users, plaintiff has not shown that the need to discover their identities at this early stage outweighs the prejudice to those individuals, or that the request to subpoena all of those individuals' ISPs is reasonable at this time, in light of all the surrounding circumstances. See Hansmeier Decl., ¶ 27 (stating that Hansmeier "personally observed John Doe's IP address . . . downloading and uploading the Video in a BitTorrent swarm containing the other IP addresses listed in Exhibit A" and noting that those other users "could have aided John Doe"). Therefore, the remainder of plaintiff's request for expedited discovery will be denied without prejudice.

Id. at 3-6. Accordingly, the undersigned authorized plaintiff to "immediately serve a Rule 45 subpoena on Comcast Cable Communications (the ISP listed for John Doe in Exhibit A to the Amended Complaint) to obtain the following information about John Doe (based on the IP address listed for him in Exhibit A to the Amended Complaint -- 76.11.57.33): name, addresses, telephone numbers, and email addresses." Id. at 6. However, the order provided that plaintiff's request for an order authorizing plaintiff to serve subpoenas on other ISPs was denied without prejudice. Id. at 7.

On January 31, 2012, plaintiff filed a renewed application to conduct expedited discovery. Dckt. No. 10. Plaintiff again seeks leave to serve discovery on the other third party ISPs to determine the identities of John Doe's co-conspirators. Id. Plaintiff makes the same arguments it made in the initial application, but it attaches a revised Hansmeier declaration in order "to clarify the two ambiguities in the Hansmeier declaration that ostensibly caused the Court to partially deny Plaintiff's original application." Id. at 1.

II. DISCUSSION

Plaintiff argues that the basis for the earlier denial of the request "was a concern over the 'potential that some of the alleged co-conspirators are innocent internet users," citing "two excerpts from the Hansmeier declaration that triggered this concern." *fn1 Id. (citing Dckt. No. 9 at 6). Plaintiff presumes that, with respect to the first excerpt, "the Court was concerned that Hansmeier did not expressly state, as he did with respect to John Doe, that he personally observed the co-conspirators' IP addresses in the BitTorrent swarm." Id. at 2. Similarly, with respect to the second excerpt, "[p]laintiff presumes that the Court was concerned that the usage of 'could have' was meant to indicate possibility-thus introducing the spectre that the co-conspirators had no association to the unlawful activity alleged in Plaintiff's complaint-versus being used to indicate technical feasibility." Id.

Plaintiff attempts to remedy that concern by the revised Hansmeier declaration, which clarifies that in addition to observing John Doe downloading and uploading the Video in a BitTorrent swarm, Hansmeier "also observed the IP addresses listed under 'Co-Conspirators' engaged in the same downloading and uploading as John Doe." Revised Hansmeier Decl., Dckt. No. 10-1, ΒΆ 27. Hansmeier adds that "[i]n fact, each IP address listed on Exhibit A to the complaint-including that of John Doe and those of his so-called co-conspirators-distributed a portion of the Video to 6881's forensic software," and he contends that "[d]irectly observing such distribution and only including IP addresses that are associated with such distribution provides a high level of protection against false positives." Id. Hansmeier further amends his declaration by removing the use of the words "could have" ...


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