The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff Pink Lotus Entertainment, LLC ("plaintiff") previously filed an ex parte application for leave to take expedited discovery on January 6, 2012. (App. for Expedited Discovery, Dkt. No. 7.) That application was denied on January 23, 2012. (Order, Dkt. No. 8.)
Presently before the court is plaintiff's amended ex parte application for leave to take expedited discovery, which plaintiff filed on January 30, 2012. (Amended App. for Expedited Discovery, Dkt. No. 9.) As with its original ex parte application, plaintiff did not notice its amended ex parte application for hearing. The undersigned concludes that oral argument would not be of material assistance in resolving the amended application.
Accordingly, the application will be decided on the papers submitted.*fn1
Through plaintiff's amended application for expedited discovery, plaintiff again seeks permission to serve a discovery subpoena upon a third party named Steve Polan ("Mr. Polan" or "the account holder"), who is the "account holder associated with" the Internet Protocol ("IP") address "220.127.116.11," which was allegedly used in connection with infringement upon plaintiff's copyrighted adult video entitled Dexxxter ("Video"). Although plaintiff alleges that Mr. Polan is the "holder" of the account allegedly used to infringe upon plaintiff's copywritten Video, plaintiff has not formally named Mr. Polan as a defendant in this action because the relationship between an account holder and infringer can be "imperfect." (Complaint, ("Compl."), Dkt. No. 2 ¶ 1; App. for Expedited Discovery at 9; Amended App. for Expedited Discovery at 9.) Instead, plaintiff requests expedited discovery (in the form of deposing Mr. Polan as a third party), purportedly to obtain the identities of the defendant(s) alleged to have used Mr. Polan's account associated with IP address "18.104.22.168" to infringe on plaintiff's rights in regards to the Video. (Amended App. for Expedited Discovery at 5; App. for Expedited Discovery at 5; see also Compl. ¶¶ 1-4, 19-37.)
The undersigned has considered plaintiff's amended application and, for the reasons discussed below, the undersigned denies plaintiff's amended ex parte application to conduct limited early discovery pursuant to Federal Rule of Civil Procedure 26(d)(1).
On November 21, 2011, plaintiff filed a complaint for copyright
civil conspiracy against John Doe, an unnamed defendant.*fn2
(Compl. ¶ 1.) Plaintiff is a producer
of adult entertainment content, and is alleged to be the exclusive
holder of the relevant rights with respect to the Video. (Compl. ¶¶
3-4.) In the course of monitoring Internet-based infringement of its
copyrighted content, plaintiff's agents allegedly observed unlawful
reproduction and distribution of the Video occurring over a particular
IP address via the Bit Torrent file transfer protocol, the mechanics
of which are further described in the Complaint.*fn3
(Compl. ¶¶ 5, 14-18, 22-24.) According to plaintiff, it has already determined that Mr. Polan is the account holder of the IP address involved. (Amended App. for Expedited Discovery at 5.) According to plaintiff, "[e]ven if Mr. Polan did not download and distribute Plaintiff's copyrighted video himself, the infringing activity occurred over his network and the equipment he controls," such that Mr. Polan is the only person "with information that can allow Plaintiff to identify the true infringer." (Id. at 5; 9.) According to plaintiff, when plaintiff's counsel contacted Mr. Polan, Mr. Polan was entirely non-responsive, and in fact, "merely ignored all of Plaintiff's counsel's attempts to meet and confer" regarding the identity of the alleged infringer. (Id. at 9.)
As noted above, plaintiff previously filed an ex parte application for leave to take expedited discovery (App. for Expedited Discovery, Dkt. No. 7), and that application was denied on January 23, 2012. (Order, Dkt. No. 8.) The undersigned denied plaintiff's ex parte application because plaintiff had failed to demonstrate good cause for the expedited discovery plaintiff requested. (Order at 3-8.) The Order also separately raised the undersigned's concern about plaintiff's failure to provide a signed declaration supporting the many factual allegations made in the ex parte application. (Id. at 8-9 ("The undersigned is also troubled by plaintiff's failure to substantiate certain claims made in its moving papers[,]" such as counsel's efforts to communicate with the account holder and counsel's representations about the scope of questions to be asked should the account holder be deposed.).)
Now, plaintiff again asks the court to authorize service of a third party deposition subpoena upon the account holder. Plaintiff again states that, in some cases, an account holder may be able to offer a credible explanation for why he or she is not the infringer and may be able to identify the actual infringer, such as another household member or tenant. (Amended App. for Expedited Discovery at 5; App. for Expedited Discovery at 5.) Plaintiff again contends that it cannot proceed in the action without ascertaining the likely infringer's identity, and that Mr. Polan is the only person with information that can allow plaintiff to identify the actual infringer and permit service of process on that individual. (Amended App. for Expedited Discovery at 5; App. for Expedited Discovery at 5.)
Plaintiff's amended ex parte application raises the same legal arguments plaintiff raised in its original ex parte application. (Compare Amended App. for Expedited Discovery with App. for Expedited Discovery (both arguing that "good cause" exists for expedited discovery, and that a deposition of the account holder would be minimally burdensome and reasonably calculated to lead to the discovery of the infringer's identity.) The difference between the two applications is that the factual statements within the amended application are supported by a signed declaration from plaintiff's counsel. (Declaration of Brett Gibbs ("Gibbs Decl."), Dkt. No. 9-1 at 2-5.) Attorney Gibbs states that he "informed Mr. Polan of the allegations against him and the likelihood of this lawsuit if Mr. Polan could not supply Plaintiff with a factually supportable alibi," but never heard back from Mr. Polan. (Gibbs Decl. at ¶¶ 5-7.) Attorney Gibbs attests to his firm's efforts to contact the account holder (id. ¶¶ 2-8), as well as to his intent to depose the account holder by asking only limited questions designed to reveal the "actual infringer" and to "minimize the burden" on the account holder (id. ¶ 9-12).
While the undersigned appreciates plaintiff's renewed diligence in
providing a signed declaration to substantiate the factual
representations within the moving papers, the undersigned denies
plaintiff's amended application. Under the same legal analyses
described in the undersigned's Order of January 23, 2012, the entirety
of which is incorporated by reference here, plaintiff's amended
application fails to show the existence of good cause*fn4
warranting the use of expedited discovery. (See Order, Dkt.
No. 9 at 3-7 (applying the "good cause" analysis of Semitool, Inc. v.
Tokyo Electron. Am. Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002),
discussing authorities, including UMG Recordings, Inc. v. Doe, No.
C--08-03999 RMW, 2008 ...