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Af Holdings LLC v. John Doe

July 12, 2012

AF HOLDINGS LLC,
PLAINTIFF,
v.
JOHN DOE,
DEFENDANT.



The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION ) FOR EXPEDITED DISCOVERY [ECF No. 3]

Currently before the Court is Plaintiff's Ex Parte Application for Leave to Take Expedited Discovery (hereinafter "motion" or "motion for expedited discovery"). ECF No. 3. Because the Defendant has not been identified, no opposition or reply briefs have been filed. Having reviewed Plaintiff's motion and all supporting documents, the Court DENIES without prejudice the motion for the reasons set forth below.

BACKGROUND

Plaintiff alleges that Defendant used BitTorrent, a popular peer-to-peer file sharing protocol, to illegally reproduce and distribute its copyrighted motion picture - "Popular Demand" -violation of the Copyright Act, 17 U.S.C. § 501, et seq. ECF No. 1 at 3. On June 20, 2012, Plaintiff filed a complaint against Defendant for copyright infringement, contributory copyright infringement, and negligence. Id. at 7-9.

Plaintiff states that while it does not know John Doe's actual name at this time, it has identified John Doe by the unique Internet Protocol (IP) address "68.8.137.53." Id. at 2. Plaintiff's investigator declares that he observed John Doe's IP address downloading and uploading the copyrighted motion picture in a BitTorrent "swarm."*fn1 ECF No. 3-1 at ¶ 27, Decl. of Peter Hansmeier.

On June 28, 2012, Plaintiff filed its motion for expedited discovery. ECF No. 3. Because Plaintiff has only identified Defendant by its IP address, Plaintiff seeks the Court's permission to serve a third-party subpoena on Defendant's Internet Service Provider (ISP), Cox Communications, to obtain Defendant's name, address, telephone number, e-mail address, and Media Access Control address. ECF No. 3-3 at 2.

DISCUSSION

The Cable Privacy Act

The Cable Privacy Act generally prohibits cable operators from disclosing personally identifiable information regarding subscribers without the prior written or electronic consent of subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator may disclose such information the disclosure is made pursuant to a court order and the cable operator provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable operator is defined as "any person group of persons (A) who provides cable service over a cable system and directly or through or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such cable system." 47 U.S.C. § 522(5). Accordingly, Plaintiff seeks an Order instructing Cox Communications to produce documents and information sufficient to identify the user of the specified IP address.

Early Discovery

A party may not seek discovery from any source before the Rule 26(f) conference unless party first obtains a stipulation or court order permitting early discovery. Fed. R. Civ. P. 26(d)(1). Courts in the Ninth Circuit apply the "good cause" standard in deciding whether to permit early discovery. Semitol, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. 2002) (adopting the conventional standard of "good cause" in evaluating a request for expedited discovery). Good cause exists "where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party."

Good cause for expedited discovery has been found in cases involving claims of infringement unfair competition or in cases where the plaintiff seeks a preliminary injunction. Id. In infringement cases, expedited discovery is frequently limited to allowing plaintiffs to identify Doe defendants. See, e.g., UMG Recordings, Inc. v. Doe, 2008 WL 4104207 (N.D. Cal. Sept. 4, 2008) (granting leave to take expedited discovery for documents that would reveal the identity and contact information for each Doe defendant).

District courts in the Ninth Circuit apply a three-factor test when considering motions for expedited discovery to identify Doe defendants. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 578-80 (N.D. Cal. 1999). First, the plaintiff should "identify the missing party with sufficient specificity such that the Court can determine that the defendant is a real person or entity who be sued in federal court." Id. Second, the plaintiff must describe "all previous steps taken locate the elusive defendant" to ensure that plaintiff has made a ...


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