On January 27, 2012, this matter came before the undersigned for hearing of the motion for reconsideration of the court's November 14, 2011 order granting petitioner Ingenuity 13 LLC's October 28, 2011 ex parte Rule 27 petition submitted in this miscellaneous action.*fn1
The motion for reconsideration was filed on behalf of respondents Cox Communications, Road Runner Holdco LLC, SBC Internet Services, Inc. d/b/a AT&T Internet Services, and Verizon Online LLC. Also heard at that time was a motion to quash filed on January 26, 2012, on behalf of DOE 1.
Brett L. Gibbs appeared telephonically on behalf of petitioner, Ingenuity 13 LLC. Attorney Bart W. Huffman appeared telephonically on behalf of SBC Internet Services, Inc. Attorney Benjamin J. Fox appeared telephonically on behalf of Cox Communications, Road Runner Holdco, and Verizon Online LLC. Attorney Joseph C. Edmondson appeared telephonically on behalf of DOE 1. Oral argument was heard, and the parties' motions were taken under submission.
For the reasons set forth below, upon consideration of the briefing on file, the parties' arguments at the hearing, and the entire file, respondents' motion for reconsideration will be granted.*fn2
Petitioner, Ingenuity 13 LLC (hereinafter "Ingenuity"), is a producer of adult entertainment. On October 28, 2011, Ingenuity filed a verified ex parte petition seeking an order pursuant to Rule 27 of the Federal Rules of Civil Procedure authorizing the issuance of subpoenas duces tecum to various Internet Service Providers ("ISPs") requiring the production of account holder information associated with certain Internet Protocol ("IP") addresses. ("Pet." (Doc. No. 1.)).
A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;
(B) the subject matter of the expected action and the petitioner's interest;
(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
(E) the name, address, and expected substance of the testimony of each deponent.
Fed. R. Civ. Pro. 27(a)(1)(A)-(E).
In its Rule 27 ex parte petition Ingenuity alleged as follows. Ingenuity's adult entertainment content is being unlawfully reproduced and distributed over the internet in violation of Ingenuity's rights under the United States Copyright Act, 17 U.S.C. §§ 101, et seq. (Pet. (Doc. No. 1) at 1.*fn3 ) Ingenuity anticipates bringing a civil action against the persons engaging in such unlawful activity. Id. That civil action would be cognizable in a United States court, which have exclusive jurisdiction over copyright actions. Id. However, without knowing the identities of the anonymous infringers, Ingenuity has no means to name and serve those individuals with summons and complaint. Id. Through its petition Ingenuity seeks to ascertain the identities of the infringing individuals. Id. Specifically, the petition seeks approval of the issuance of subpoenas requiring the production of the name, address, telephone number, e-mail address and Media Control Access number associated with thirty-eight IP addresses identified by petitioner from nine ISPs. Id. at 2. Finally, the information Ingenuity seeks is regularly destroyed by the ISPs in the course of business. Id.
Finding that Ingenuity's ex parte submission satisfied the requirements of Rule 27, on November 14, 2011, the undersigned granted the petition by signing and filing the proposed order provided by petitioner. ("Order Granting Pet." (Doc. No. 8.)). That order provided the ISPs served with a subpoena thirty days in which to provide notice to the subscribers whose information was sought by petitioner, thirty days for any subscriber to then move to quash or otherwise object to the subpoena and, if no objection or motion to quash was filed, another ten days for the ISPs to produce the information sought to petitioner. Id. at 2-3.
Respondents Cox Communications, Road Runner Holdco LLC, SBC Internet Services, Inc. d/b/a AT&T Internet Services, and Verizon Online LLC, are four of the nine ISPs from whom petitioner seeks the subscriber information in question. On November 28, 2011, these four ISPs moved for reconsideration of the court's November 14, 2011 order. ("Mot. Recons." (Doc. No. 9.)).*fn4 After a briefing schedule was set (Doc. No. 12), on December 22, 2011, petitioner filed a response to the ...