The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER GRANTING EXPEDITED DISCOVERY [Doc. No. 3.]
Before the Court is Plaintiff's motion to conduct expedited discovery, pursuant to Federal Rule of Civil Procedure 26(d)(1), by serving a third party subpoena on an internet service provider (ISP) in order to obtain the names of the Doe defendants in this case. Having considered the matter, the Court GRANTS the motion.
This is a copyright infringement case brought by Plaintiff pursuant to 17 U.S.C. §§ 101 et seq. Compl. ¶ 1. Plaintiff is a British corporation that owns the copyright to a motion picture called "Bareback Street Gang." Compl. ¶¶ 6 & 11. Plaintiff alleges Defendants used the internet to install "BitTorrent," a common peer-to-peer (P2P) file sharing protocol, on their computers for the purpose of uploading, downloading and distributing its copyrighted work without permission. Compl. ¶¶ 15-25. Such activity requires the participation of a group of individuals who can upload and download pieces of the work and then transmit them to one another for collection of the whole. Compl. ¶¶ 28-34. The group of participants is called a "swarm." Id.
Plaintiff hired IPP Limited (IPP) a company that carried out a forensic investigation to find the Internet Protocol (IP) addresses of the individuals within the swarm. Compl. ¶ 35. IPP was able to locate 11 IP addresses traced to physical addresses in California. Compl. ¶ 4, Exh. A (list of 11 addresses in San Diego, Oceanside, and Chula Vista using Cox Communications as the ISP).
Plaintiff now seeks leave to serve a Rule 45*fn1 subpoena on the Doe defendants' Internet Service Provider (ISP) in order to obtain their true identities for the prosecution of this lawsuit. (Motion ("Mot.") at 2.)
A party may not seek discovery prior to the Rule 26(f) conference, unless that party obtains a stipulation or court order to conduct early or expedited discovery. Fed. R. Civ. P. 26(d)(1). For "good cause" shown, however, a court may order early discovery. Good cause may be found "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).
Rule 45, in conjunction with Rule 26, govern the discovery from nonparties by subpoena. A subpoena may command a nonparty to produce designated documents, electronically stored information, or tangible things in its possession, custody or control. Fed.R.Civ.P 45(a)(1)(A)(iii).
B. Specific application to internet addresses
In Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) the court stated a motion for expedited discovery should be granted to identify anonymous Internet users if the following were shown:
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." Id. at 578-580.
Subsequently, the courts in UMG Recordings, Inc. v Doe, 2008 WL 4104214, *4 (N.D.Cal.), Arista Records LLC v. Does 1-43, 2007 WL 4538697, *1 (S.D.Cal.), and Capitol Records, Inc. v. Doe, 2007 WL 2429830, *1 (S.D. Cal.) looked at whether a plaintiff's complaint alleged a prima facie case for infringement, whether there was any other way to identify the Doe ...