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Patrick Collins, Inc v. John Does 1through 9

July 9, 2012

PATRICK COLLINS, INC.,
PLAINTIFF,
v.
JOHN DOES 1THROUGH 9, DEFENDANTS.



The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR EARLY DISCOVERY [DOC. NO. 4]

Before the Court is Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to Rule 26(f) Conference. (Doc. No. 4) Having reviewed the motion and supporting documents, and having considered the requirements of the Cable Act, 47 U.S.C. § 551, Plaintiff's Motion for Early Discovery is GRANTED in part and DENIED in part.

Background

The instant motion was filed on June 15, 2012. On June 13, 2012, Plaintiff filed its complaint alleging that the nine John Doe defendants engaged in alleging direct and contributory copyright infringement of a protected work. According to the complaint, the protected work was downloaded shared to and through these defendants using BitTorrent technology. (Doc. No. 1). Plaintiff claims to have identified the Internet Protocol ("IP") addresses of the John Doe defendants allegedly involved in the infringing activity and, using publicly available search tools, has traced the IP addresses to physical addresses within this District and has identified the Internet Service Provider ("ISP") which leased the involved IP addresses to subscribers. (Doc. No. 4-3).

Legal Standard

Federal Rule of Civil Procedure 26(d) states:

"A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order."

In the instant case, Plaintiff may only use expedited discovery by court order. In this Circuit, courts must find "good cause" to determine whether to permit discovery prior to the Rule 26(f) conference. Good cause exists where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. See, e.g., Arista Records, LLC v. Does 1-43, 2007 WL 4538697 *1 (S.D. Cal. 2007).

In infringement cases involving the Internet, good cause is often found by the courts where the party seeking expedited discovery of a Doe defendant's identity establishes the following:

1. A prima facie case of infringement;

2. That there is no other way to identify the Doe defendant; and,

3. That there is a risk that the ISP will destroy its logs prior to the Rule 26(f) conference.

See UMG Recordings, Inc. v. Doe, 2008 WL 4104214 *4 (N.D. Cal. 2008). In UMG the court said:

"[I]n considering 'the administration of justice,' early discovery avoids ongoing continuous harm to the infringed party and there is no other way to advance the litigation. As for the defendant, there is no prejudice where the discovery request is ...


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