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Af Holdings LLC v. John Doe

August 7, 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 GRANTING PLAINTIFF'S MOTION FOR EXPEDITED DISCOVERY [ECF No. 5]

Currently before the Court is Plaintiff's renewed ex parte application for leave to take expedited discovery. ECF No. 5. ("Motion"). Plaintiff's first application was denied because Plaintiff failed to provide any evidence that Defendant was located in this district and subject to

Court's jurisdiction. ECF No. 4. Plaintiff has now renewed its application and, addressed the concerns raised by the Court in the order on Plaintiff's first application. Having reviewed Plaintiff's motion, and having found good cause, the Court GRANTS the motion for the reasons set forth below.

BACKGROUND

On June 20, 2012, Plaintiff AF Holdings LLC filed a complaint against John Doe for copyright infringement, contributory copyright infringement, and negligence. ECF No. 1 at 7-9. Plaintiff purports to be the registered owner of the copyrighted motion picture entitled "Popular Demand." Id. at 2. In its complaint, Plaintiff alleges that John Doe used a popular peer-to-peer sharing protocol called BitTorrent to reproduce and distribute Plaintiff's copyrighted material. at 3-5. According to Plaintiff, BitTorrent enables multiple computers to connect to each other the purpose of sharing a file. Id. Rather than downloading an entire file from a single host computer, however, Plaintiff states that BitTorrent users download or "seed" pieces of a file from multiple computers simultaneously. Id. Once a user downloads a piece of a file, it begins uploading that piece to other users. Id. This is commonly known as a "swarm." Id. Finally, a swarm member downloads all of a file's pieces, BitTorrent reassembles them and the user is able to view the file's contents. Id.

On June 28, 2012, Plaintiff filed its first application for expedited discovery. ECF No. 3. Specifically, Plaintiff sought the Court's permission to serve a third-party subpoena on John Doe's Internet Service Provider ("ISP"), Cox Communications, to obtain John Doe's true identity. Id.

2. On July 12, 2012, the Court denied Plaintiff's first application for failing to provide any evidence showing it "used geolocation technology to trace the Internet Protocol ["IP"] address the Defendant to a point of origin within the state of California." ECF No. 4 at 4. On July 25, 2012, Plaintiff renewed its ex parte application for leave to take expedited discovery. ECF No.

Plaintiff again seeks leave to serve discovery on John Doe's ISP, Cox Communications. Id. Plaintiff incorporates the same arguments made in its first application, but it attaches a declaration stating that John Doe is located within this District, and therefore subject to this Court's jurisdiction. Id., Decl. Brett L. Gibbs.

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 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 ...


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