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Hard Drive Productions, Inc v. Does 1-90

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


June 6, 2012

HARD DRIVE PRODUCTIONS, INC., PLAINTIFF,
v.
DOES 1-90, DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed June 6, 2012 **

NOT FOR CITATION

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION [Re: Docket No. 19]

United States District Court For the Northern District of California

In this action against Doe defendants for internet copyright infringement, plaintiff Hard Drive Productions, Inc. ("Hard Drive") now applies for leave to file a Motion for Reconsideration of 18 this court's March 30, 2012 Order, which denied plaintiff's early discovery application and severed 19 Does 2-90. Civ. L. R. 7-9. See also School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 20 F.3d 1255, 1263 (9th Cir. 1993) (Absent "other, highly unusual, circumstances," "[r]econsideration 21 is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed 22 clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in 23 controlling law.") (citing All Hawaii Tours, Corp. v. Polynesian Cultural Center, 116 F.R.D. 645, 24 648 (D. Haw. 1987), rev'd on other grounds, 855 F.2d 860 (9th Cir. 1988)). Plaintiff seeks another 25 opportunity to argue for early discovery of the identities of ISP subscribers whose IP addresses are 26 listed in the complaint, asserting that the court misconstrued Gillespie v. Civiletti in the March 30 27 Order. 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff argues that under Gillespie, this court should grant early discovery "unless it is clear

2 that discovery would not uncover the identities" of the Doe defendants. 629 F.2d at 642. Plaintiff 3 asserts that this is a much more liberal test for early discovery than the one the court actually used. 4

This court disagrees. It did not apply a more stringent test. The papers submitted by plaintiff and the 5 statements by plaintiff's counsel at the hearing on plaintiff's application for early discovery make it 6 clear that granting the sought-after discovery would not uncover the identities of the infringers. 7

Instead, it would reveal a list of names and addresses of ISP subscribers. Some these subscribers 8

(wherever they may be located) are probably infringers, but others surely are not (because, in 9 addition to the named subscriber, roommates, guests, family members, friends, dormitory mates or 10 acquaintances, unauthorized users of unprotected wireless signals and others may "share" an ISP subscription). Plaintiff admitted this when it told the court it would contact every name on the subscriber list and give each one a chance to "prove" his or her innocence and/or agree to a 13 settlement before it decided whether to name each subscriber as a defendant in this lawsuit. Plaintiff 14 also said that additional early discovery might then be necessary to locate infringers other than the 15

ISP subscribers. 16

In what must be a misreading of the March 30 Order, plaintiff in effect seems to chastise this 17 court for sympathizing with, and, plaintiff would argue, insulating infringers from plaintiff's reach. 18

The court had no such purpose or intent. Instead, it expressly sympathized with the plaintiff and 19 other victims of infringement. It said nothing sympathetic about infringers. It was deeply concerned 20 about non-infringers who, based on plaintiff's prior use of early discovery in other cases, would 21 almost certainly be caught up in plaintiff's dragnet aimed at achieving an extra-judicial remedy. 22

Accordingly, plaintiff having failed to offer valid grounds for filing a motion for

23 reconsideration, plaintiff's motion is DENIED. 24

IT IS SO ORDERED.

Notice will be electronically mailed to: Brett Gibbs blgibbs@wefightpiracy.com 3 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. 4 5 6 7 8 9 10

20120606

© 1992-2012 VersusLaw Inc.



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