The opinion of the court was delivered by: Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LEAVE TO SERVE THIRD PARTY SUBPOENAS PRIOR TO A RULE 26(f) CONFERENCE [DOC. NO. 4]
The Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference ("Motion") was filed on April 30, 2012. (Doc. No. 4.) The Motion was accompanied by a Memorandum of Points and Authorities, declarations and exhibits. (Id.) Because no Defendant has been named or served, no opposition or reply briefs have been filed.
Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the Motion suitable for decision without oral argument. For the reasons discussed below, the Motion is GRANTED.
Plaintiff, Malibu Media, LLC ("Plaintiff") filed a Complaint against Does 1 through 19 ("Defendants") on April 30, 2012. (Doc. No. 1.) Plaintiff purports to be the registered owner of, or has applied to obtain the registration for 107 movies contained on a website. (Compl. at 2, 4; Doc. No. 1.) First, Plaintiff alleges copyright infringement, stating that Defendants reproduced and distributed Plaintiff's copyrighted material through the internet without authorization. (Id. at 9.) Second, Plaintiff pleads contributory copyright infringement, alleging that by participating in a BitTorrent swarm, each Defendant induced, caused or materially contributed to the infringing conduct of each other Defendant. . at 10-11.)
On April 30, 2012, Plaintiff filed this Motion in order to learn the identities of the Doe Defendants from their respective Internet Service Providers ("ISPs"). (Pl.'s Mem. P.&A. at 2; Doc. No. 4.) Specifically, Plaintiff seeks leave of court to serve Rule 45 subpoenas on the ISPs in order to discover the true name, address, telephone number, e-mail address, and Media Access Control ("MAC") address of each Defendant to whom the ISP issued an IP address. (Id.) In support of the Motion, Plaintiff attached Tobias Fiesler's ("Fiesler") declaration. (Decl. Fiesler; Doc. No. 4-1.) Fiesler identified the Internet Protocol ("IP") addresses that were used to reproduce, distribute, display or perform Plaintiff's copyrighted works without authorization. (Id. at 2.) Attached to Fiesler's declaration is an exhibit
the IP addresses, the date the IP addresses were used to infringe Plaintiff's copyrighted works, and location of the IP addresses when they were accessing the BitTorrent network. (Decl. Fiesler, Ex. B; Doc. 4-3.)
The Complaint alleges that the 19 Doe Defendants collectively infringed its copyrighted work using BitTorrent file sharing protocols. (Compl. at 4; Doc. No. 1.) The Defendants are purportedly a collection of "BitTorrent peers" whose computers connect for the purpose of downloading and uploading a computer file in what is commonly called a "swarm." (Id. at 6-7.) Plaintiff alleges that each of Defendants' IP addresses participated in a swarm that distributed Plaintiff's copyrighted file identified the unique hash number 625659538761601BE56B75C3D1DF1053A7C8BB28 ("Unique Hash Number"). (Id.)
Generally, discovery is not permitted without a court order before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Yet, "in rare cases, courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant." Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Courts grant these requests when the moving party shows good cause for the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002).
The Ninth Circuit has held that when the defendants' identities are unknown at the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to determine the defendants' identities "unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie, 629 F.2d at 642. A district court's decision to grant discovery to determine jurisdictional facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at District courts apply a three-factor test when considering motions for early discovery to identify certain defendants. Id. at 578-80. First, the plaintiff should "identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court." Id. at 578. Second, the movant must describe "all previous steps taken to locate the elusive defendant" to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 579. Third, plaintiff should establish that its suit against the defendant could withstand a motion to dismiss. Id. "[T]o prevent abuse of this extraordinary application of the discovery process and to ensure that the plaintiff has standing," plaintiff must show that some act giving rise to liability actually occurred and that the discovery is aimed at identifying the person who actually committed the act. Id. at 579-80.
Plaintiff seeks an order permitting it to subpoena the Doe Defendants' ISPs in order to learn Defendants' true identities and serve them with the Complaint. Specifically, Plaintiff seeks to subpoena ISPs-Cox Communications, Road Runner and Verizon Internet Services-to identify the subscribers of the assigned IP addresses listed in Exhibit B to Fiesler's declaration. (Decl. Fiesler, Ex. B; Doc. No. 4-3.) All 19 of the IP addresses that Plaintiff lists in ...