The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge
** E-filed March 30, 2012 **
ORDER DENYING APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY AND SEVERING DOES 2-90 [Re: Docket No. 6]
This case is one of dozens of "mass copyright violation" cases filed in district courts recently 17 against Doe defendants who allegedly used BitTorrent file-sharing technology to illegally up- and 18 download copyrighted files from the Internet.*fn1 Here, plaintiff has sued 90 Doe defendants, but 19 lawsuits of this type may include as few as two dozen or as many as two thousand defendants. 20 While each case is unique, they follow a similar pattern. 21
2 entertainment, and claims widespread infringement of its copyright(s) by individuals using the 3 popular file-sharing internet protocol known as BitTorrent. Not knowing the names of these 4 individuals, plaintiff sues "Does," each one represented to be the user of one of the IP addresses*fn2
that plaintiff claims it observed uploading or downloading the copyrighted work in a single 6
In BitTorrent vernacular, an individual downloader is called a "peer." The complete version 8 of the specific file is called a "seed." A peer who shares a seed through BitTorrent is called a 9 "torrent file") and uploads the torrent file to a website where peers store such files (a "torrent indexing site"). As additional peers find the torrent file, their BitTorrent programs run the code and begin to download random pieces of the seed file and then upload those pieces to other peers 13 running the torrent file. This exchange of pieces of the seed file between peers is a "swarm." Peers 14 do not choose which pieces are downloaded and uploaded (this is determined by the code in the 15 torrent file), nor do they choose the peers to and from whom they send and receive pieces. 16
17 subpoenaing the various ISPs whose IP addresses appear in the swarm, ostensibly to identify and 18 name the defendants in the action. Ordinarily, such discovery is prohibited by Fed. R. Civ. P. 26(d). 19
However, plaintiff assures the court that if it will permit this "limited" discovery, the plaintiff can 20 subpoena the ISPs for subscriber information associated with each IP address, and then name and 21 serve the defendants so that the case may go forward. 22
Following the pattern, Hard Drive now seeks limited discovery under Fed. R. Civ. P. 26(d)
23 and Fed. R. Civ. P. 45 in order to identify the 90 Does named in this suit by issuing subpoenas on 24 the relevant ISPs. Dkt. No. 16 ("Application"). Plaintiff has consented to the undersigned's 25
Plaintiff contends that "nearly all" of the IP addresses listed in this action are dynamic, though it does not explain how one can determine the nature of an IP address. See Hansmeier Decl. ¶ 17. ISPs do keep logs of the IP addresses they assign to their subscribers, at least temporarily. Id.
The plaintiff claims to own title to one or more copyrights in a film, usually a work of adult BitTorrent "swarm." 7
"seeder." The seeder creates a file that contains BitTorrent protocol code for how to find the seed (a 10
After filing suit, the plaintiff requests that the court let it conduct expedited discovery, by jurisdiction pursuant to 28 U.S.C. § 636(b). Based on the Application, supplemental briefing, 2 arguments at hearing, and all applicable authority, the court rules as follows. 3
On August 3, 2011, plaintiff Hard Drive Productions, Inc. ("Hard Drive") filed this lawsuit 5 for copyright infringement against 90 Doe defendants. Dkt. No. 1 ("Complaint"). Hard Drive alleges 6 it owns a copyright for the adult file "Amateur Allure-Natalia" and claims that the defendants 7 illegally distributed the film in a BitTorrent swarm. Plaintiff alleges that it observed all 90 of the 8
Complaint, Exh. A (listing the 90 IP addresses and the date and time when plaintiff alleges they 10 appeared in the swarm).
On August 10, 2011, plaintiff filed an ex parte application for leave to take "limited" discovery "solely to determine the true identities of Doe Defendants that Plaintiff will fully identify 13 over the course of this litigation." Application p. 8 (italics in original). This court set a hearing on 14 the application, and requested supplemental briefing on three issues: 1) further details on the date(s) 15 and time(s) each IP address appeared in the swarm; (2) to what extent IP addresses provide 16 geographic information; and (3) how plaintiff planned to proceed should its application be granted. 17
The court held a hearing on November 29, 2011. 18
Under Fed. R.Civ. P. 26(d)(1), discovery is not permitted without a court order prior to a 20 conference between the parties as required by Fed. R. Civ. P. 26(f) and then only upon a showing of 21 2002). When considering good cause, courts consider: whether (1) the plaintiff can identify the 23 missing party with sufficient specificity such that the Court can determine that defendant is a real 24 person or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps 25 taken to locate the elusive defendant; (3) the plaintiff's suit against defendant could withstand a 26 motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of 27 being able to identify the defendant through discovery such that service of process would be 28
Doe defendants in the swarm at some point over a period of 63 days. See Complaint ¶ 8; see also 9
"good cause." Semitool, Inc. v. Tokyo Electron American, Inc., 208 F.R.D. 273, 275 (N.D. Cal. 22 possible. See Patrick Collins v. John Does 1-54, 2012 U.S. Dist. LEXIS 36232, *8 (D. Ariz. Mar. 2 19, 2012). 3
4 may grant plaintiffs early discovery to determine the doe defendants' identities "unless it is clear 5 that discovery would not uncover the identities, or that the complaint would be dismissed on other 6 grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In Gillespie, the Ninth Circuit 7 held that the district court abused its discretion in denying early discovery because it was "very 8 likely" that the requested early discovery-interrogatories directed to named defendants-would Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting ...