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Malibu Media, LLC v. John Does 1 Through 12

July 10, 2012



Presently before the court is plaintiff's ex parte application for leave to serve third party subpoenas prior to the Rule 26 conference. Dckt. No. 7. For the reasons stated herein, the request will be granted in part and denied in part.


Plaintiff, a producer of adult entertainment content, has filed this action against defendants John Does 1 through 12, alleging claims for copyright infringement and contributory infringement. See generally Compl., Dckt. No. 1. Plaintiff's complaint alleges that "[e]ach of the Defendants copied and distributed most of a website containing 51 movies," known as a "siterip," and that "Plaintiff has obtained the registration for, or has applied to obtain the registration for, 26 of the 51 movies contained in the siterip with the United States Copyright Office." Id. ¶¶ 2, 13. Plaintiff also alleges that plaintiff's computer investigators identified each of the defendants' Internet Protocol ("IP") addresses as participants in a swarm that was distributing plaintiff's copyrighted Work, id. ¶¶ 38-44.

Plaintiff alleges that "[e]ach Defendant is known to Plaintiff only by an IP address," which "is a number that is assigned by an Internet Service Provider (an "ISP") to devices, such as computers, that are connected to the Internet." Id. ¶¶ 9-10. Plaintiff alleges that "[t]he ISP to which each Defendant subscribes can correlate the Defendant's IP address to the Defendant's true identity." Id. ¶ 11. Plaintiff contends that the defendants were properly joined under Federal Rule of Civil Procedure 20(a)(2) because "(a) each of the Defendants is jointly and severally liable for the infringing activities of each of the other Defendants, and (b) the infringement complained of herein by each of the Defendants was part of a series of transactions, involving the exact same torrent file containing [] Plaintiff's copyrighted Works, and was accomplished by the Defendants acting in concert with each other, and (c) there are common questions of law and fact; indeed, the claims against each of the Defendants are identical and each of the Defendants used the BitTorrent protocol to infringe Plaintiff's copyrighted Works." Id. ¶ 12.


Plaintiff has now filed an ex parte application seeking leave to take expedited discovery prior to the Rule 26 conference in order to obtain the identities of John Does 1 through 12. Dckt. No. 7-1; see also Fieser Decl., Dckt. No. 7-2. Specifically, plaintiff seeks to issue subpoenas to the various ISPs used by John Does 1 through 12 (each of whom is identified by a unique IP address, which corresponds to the date and time of allegedly infringing activity). Dckt. No. 7-1 at 2. Plaintiff contends that without information identifying the defendants, plaintiff cannot serve those defendants or otherwise pursue this lawsuit. Id.

Plaintiff contends that good cause supports its application for expedited discovery because (1) plaintiff has made a prima facie showing of infringement; (2) there is no other way to identify the Doe defendants, (3) there is a risk that the ISPs will destroy their logs prior to the Rule 26(f) conference, (4) plaintiff has specified the discovery requested, (5) plaintiff has demonstrated a central need for the subpoenaed information to advance the asserted claims, and (6) plaintiff has established that the Doe defendants' expectations of privacy do not outweigh the need for the requested discovery. Id. at 3, 4-7 (citing UMG Recording, Inc. v. Doe, 2008 WL 4104214, at *4 (N.D. Cal. 2008) and Sony Music Entertainment v. Does 1-40, 326 F. Supp. 556, 564-565 (S.D.N.Y. 2004)).

Federal Rule of Civil Procedure 26(d)(1) provides that "[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." Fed. R. Civ. P. 26(d)(1). Here, because plaintiff does not know the identity of the John Doe defendants, the parties have not yet met and conferred under Rule 26(f). Therefore, plaintiff requests that the court authorize expedited discovery.

Courts in the Ninth Circuit apply a "good cause" test in deciding whether to permit expedited discovery before the Rule 26(f) conference.*fn1 Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275 (N.D. Cal. 2002); see also Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D. Cal. 2009); In re Countrywide Financial Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008); Matson & Isom Technology Consulting v. Dell Inc., 2008 WL 3863447 (E.D. Cal. Aug. 19, 2008); Qwest Commc'ns Int'l, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003) (The "party seeking expedited discovery in advance of [the] Rule 26(f) conference has the burden of showing good cause for the requested departure from usual discovery procedures."). "Good cause exists 'where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.'" In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d at 1179 (quoting Semitool, Inc., 208 F.R.D. at 276). The court must make this evaluation in light of "the entirety of the record . . . and [examine] the reasonableness of the request in light of all the surrounding circumstances." Semitool, Inc., 208 F.R.D. at 275 (citation & quotation marks omitted) (emphasis removed); Am. Legalnet, Inc., 673 F. Supp.2d at 1067.

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. Semitool, Inc., 208 F.R.D. at 276; Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675, 676 (D. Colo. 2002). Recently, several courts have found good cause to allow expedited discovery to ascertain the identities of Doe defendants in copyright infringement actions. See, e.g., Arista Records LLC v. Does 1-43, 2007 WL 4538697, at *1 (S.D. Cal. Dec. 20, 2007); SBO Pictures, Inc. v. Does 1-3036, 2011 WL 6002620 (N.D. Cal. Nov. 30, 2011) (authorizing expedited discovery as to one of the Doe defendants and dismissing the remaining Doe defendants); Hard Drive Prods., Inc. v. Does 1-130, 2011 WL 5573960 (N.D. Cal. Nov. 16, 2011) (same); AF Holdings LLC v. Does 1-97, 2011 WL 2912909 (N.D. Cal. July 20, 2011) (same); Pac. Century Int'l Ltd. v. Does 1-101, 2011 WL 2690142 (N.D. Cal. July 8, 2011) (same); AF Holdings LLC v. Does 1-96, 2011 WL 5864174 (N.D. Cal. Nov. 22, 2011) (authorizing expedited discovery as to the 96 Doe defendants).

For example, 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. Arista Records LLC, 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.

Other courts have specifically noted that "[i]n this particular context, the court must balance 'the need to provide injured parties with an [sic] forum in which they may seek redress for grievances' against 'the legitimate and valuable right to participate in online forums anonymously or pseudonymously . . . without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.'" Hard Drive Prods., Inc., 2011 WL 5573960, at *1 (quoting Columbia Ins. Co. v., 185 F.R.D. 573, 578 (N.D. Cal. 1999)); see also Hard Drive Prods., Inc. v. Does 1-90, 2012 WL 1094653, at *7 (N.D. Cal. Mar. 30, 2012) (stating that "the 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)").*fn2

Here, plaintiff has demonstrated good cause for some of the expedited discovery requested, but not all of it. Specifically, plaintiff has shown good cause to conduct expedited discovery regarding the identity of one of the Doe defendants, John Doe 1, but has not shown good cause to conduct expedited discovery regarding the other Doe defendants. Since plaintiff does not know the identity of any of the Doe defendants, plaintiff cannot proceed with this lawsuit, and therefore cannot conduct a Rule 26(f) discovery conference, without obtaining at least one Doe defendant's identity. UMG Recordings, Inc. v. Does 1-4, 2006 WL 1343597, at *1 (N.D. Cal. Apr. 19, 2006). Additionally, plaintiff's representations presently support that the IP address identified by plaintiff for John Doe 1- associated with a particular individual, and that the discovery sought will facilitate identification of, and service of the summons and complaint on, that Doe defendant. Further, plaintiff's investigative technician has declared, albeit rather speculatively and without explanation, that some ISPs store subscriber information associated with particular IP addresses for a limited period of time.*fn3 Finally, the undersigned also finds, at least on the present record, that there is little risk of material prejudice to John Doe 1 or the associated ISP, Comcast Cable Communications, if that ISP is served with a Rule 45 subpoena that requires the ISP to provide the actual name and contact information of John Doe 1, especially since John Doe 1 and/or the ISP may move to quash the subpoena or seek a protective order. Accordingly, plaintiff's request to subpoena Charter Communications (the ISP listed for John Doe 1 in Exhibit A to plaintiff's complaint and in plaintiff's proposed order on the application for expedited discovery) to obtain limited information needed to identify the user of IP address will be granted.

However, because plaintiff will be able to proceed with this action and with traditional discovery once it obtains information identifying John Doe 1, plaintiff has not shown that the need to discover the identities of all of the other Doe defendants at this early stage outweighs the prejudice to the responding ISPs and/or to those potentially innocent Doe defendants, or that the request to subpoena all of those ...

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