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Af Holdings LLC v. John Doe

May 24, 2012



Presently before the court is plaintiff's ex parte application for leave to take expedited discovery. Having reviewed the papers in support of the application and the motion, the court concludes that the motion for expedited discovery should be granted.


In this action, filed April 23, 2012, plaintiff alleges copyright infringement, negligence and contributory infringement of the adult entertainment video, "Popular Demand" ("Video") against a single defendant, John Doe. In the course of monitoring Internet-based infringement of its copyrighted content, plaintiff's agents allegedly observed unlawful reproduction and distribution of the Video via the Bit Torrent file transfer protocol by John Doe. Although plaintiff does not know the actual name of John Doe, plaintiff's agents have identified John Doe by an IP address and the date and time of the alleged unlawful activity. (Compl. (Doc. No. 1) at 1, 5-7.)

According to plaintiff, only the Internet Service Provider ("ISP") who issued the IP address connected with the unauthorized activity has the ability to identify the Doe defendant. Plaintiff asserts that it has identified Comcast Cable Communications LLC as the ISP who issued the IP address connected with the unauthorized activity. Plaintiff contends that ISPs only keep the identifying information for a limited period of time, for as little as months or even weeks before potentially permanently erasing the information. Thus, plaintiff seeks an order granting expedited discovery to serve a Rule 45 subpoena on Comcast Cable Communications LLC to determine the identity of the Doe defendant, thereby permitting plaintiff to amend its complaint to state the true name of defendant and serve defendant with process. (Ex Parte Motion (Doc. No. 7) at 1-12.)


Generally, Rule 26(d) of the Federal Rules of Civil Procedure provides that "[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except . . . when authorized by these rules, by stipulation, or by court order." Fed. R. Civ. P. 26(d) (emphasis added). Courts apply a "good cause" standard in considering motions to expedite discovery. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). "Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." Id.

Good cause for expedited discovery is frequently found in cases involving claims of infringement and unfair competition or in cases where the plaintiff seeks a preliminary injunction. Id.; Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675, 676 (D. Colo. 2002). Moreover, in several unpublished opinions U.S. District Courts in California, applying the test in Semitool, have found good cause to allow expedited discovery to ascertain the identities of Doe defendants in copyright infringement actions. See, e.g., AF Holdings LLC v. Doe, Civ. No. S-12-1078 GEB GGH, 2012 WL 1610185 (E.D. Cal. May 8, 2012); First Time Videos, LLC v. Doe, No. CIV S-12-621 GEB EFB, 2012 WL 1355725 (E.D. Cal. Apr. 18, 2012); Smash Pictures v. Does 1-265, Civ. No. S-12-0301 JAM CKD, 2012 WL 761936 (E.D. Cal. Mar. 7, 2012); UMG Recordings, Inc. v. Doe, No. C-08-03999 RMW, 2008 WL 4104207 (N.D. Cal. Sept. 4, 2008); Arista Records LLC v. Does 1-43, No. 07cv2357-LAB (POR), 2007 WL 4538697 (S.D. Cal. Dec. 20, 2007). But see Hard Drive Productions, Inc. v. Does 1-90, No. C 11-03825 HRL, 2012 WL 1094653, at *7 (N.D. Cal. Mar. 30, 2012) ("[T]he court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extra-judicial business plan against possible infringers (and innocent others caught up in the ISP net).").*fn1

In Arista Records LLC, the plaintiffs alleged that unidentified defendants had used an online media distribution system to download and distribute plaintiffs' copyrighted works to the public without permission. 2007 WL 4538697, at *1. Because the plaintiffs were only able to identify each defendant by a unique internet protocol address assigned to that defendant, plaintiffs filed an ex parte application seeking leave to serve immediate discovery on a third-party ISP to identify the Doe defendants' true identities. Id. The court found good cause to allow expedited discovery based on the plaintiffs' prima facie showing of infringement, the risk that the ISP would not long preserve the information sought, the narrow tailoring of the requests to the minimum amount of information needed to identify the defendants without prejudicing their rights, and the fact that the expedited discovery would substantially contribute to moving the case forward. Id. The court further noted that, without such discovery, plaintiffs could not identify the Doe defendants and would not be able to pursue their lawsuit to protect their copyrighted works from infringement. Id.

Here, plaintiff has similarly demonstrated its need for expedited discovery. Plaintiff obviously cannot conduct a Rule 26(f) conference with an unidentified defendant and must conduct pre-conference discovery in order to ascertain the identity of the Doe defendant, amend its complaint, and move the case forward. There does not appear to be any other way for plaintiff to identify the defendant and pursue the lawsuit to protect its copyrighted video. Given that plaintiff has identified the defendant by the IP address assigned by his or her ISP, it appears that the requested discovery may identify the unknown defendant. Furthermore, there is some need for exigency given the risk that the information sought may be inadvertently destroyed by Comcast Cable Communications LLC in the ordinary course of business.

The need for expedited discovery must of course be balanced against the prejudice to the responding party. Semitool, 208 F.R.D. at 276. In this case, the responding party is Comcast Cable Communications LLC.*fn2 It is unclear what prejudice the ISP would suffer if ordered to produce the information plaintiff requests. It would not seem to be excessively burdensome for the identified ISP to provide the information sought here.

Moreover, there is little risk of prejudice to the Doe defendant. "Expedited discovery may be inappropriate where defendants are required to unwarily incriminate themselves before they have a chance to review the facts of the case and to retain counsel." PodNers, LLC, 204 F.R.D. at 676 (citations omitted). However, the expedited discovery requested here is narrowly tailored and seeks only the minimum amount of information needed to identify the potential defendant-his or her name, address, telephone number, and e-mail address.*fn3

Because the proposed discovery relates only to identifying and contact information, and does not seek early admissions, answers to interrogatories, or the taking of depositions during which defendant may "unwarily" incriminate themselves, concerns of undue prejudice are not present here.


In sum, good cause exists for expedited discovery in this matter, because plaintiff's need for the discovery outweighs any prejudice to the ISP or ...

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