ORDER AND FINDINGS AND RECOMMENDATIONS
This matter came before the undersigned on June 15, 2012 for hearing of plaintiff's ex parte application and motion for leave to take expedited discovery. Greg Fayard, Esq. appeared on behalf of plaintiff Malibu Media, LLC.
In this action plaintiff alleges that Doe defendants 1 through 48 infringed on its copyright with respect to 16 pornographic motion pictures, the graphic titles of which are identified in plaintiff's complaint. Specifically, plaintiff alleges that in the course of monitoring Internet-based infringement of its copyrighted content, its agents observed unlawful reproduction and distribution of the subject motion pictures by the 48 Doe defendants via the Bit Torrent file transfer protocol. Although plaintiff does not know the names of the Doe defendants, its agents created a log identifying the Doe defendants by their IP addresses and the dates and times of their alleged unlawful activity. The IP addresses, internet service providers ("ISPs"), and dates and times of the alleged unlawful activity by the 48 Doe defendants are identified in an exhibit to plaintiff's complaint.
As noted above, plaintiff has filed an ex parte application for
expedited discovery to serve Rule 45 subpoenas on the ISPs to obtain
the names, addresses, telephone numbers, e-mail addresses and Media
Access Control ("MAC") address of the 48 Doe defendants. With respect
to the requested expedited discovery as to Doe 1, the court finds
plaintiff has shown good cause to conduct expedited discovery and the
request will be granted.*fn1 With respect to the
remaining Doe defendants, however, it appears that plaintiff's joinder
of unrelated defendants is improper under Federal Rule of Civil
Procedure 20. Given the technical complexities of BitTorrent swarm
functions,*fn2 it appears unlikely that the 48 Doe
defendants engaged in any coordinated effort or concerted activity. See, e.g., Boy Racer, Inc.
v. Does 1-60, No. C 11-01738 SI, 2011 WL 3652521, at *4 (N.D. Cal.
Aug. 19, 2011) ("Because Doe defendants 2-60 were improperly joined in
the matter, the Court is authorized under Rule 21 to 'drop' these
defendants.") Under these circumstances, permissive joinder under
Federal Rule of Civil Procedure 20(a)(2) is not warranted.*fn3
See Third Degree Films, Inc. v. Does 1-131, 280 F.R.D. 493,
495- 500 (D. Ariz. 2012) (Surveying the various approaches to such
cases and discovery requests taken by district courts around the country, determining that
the joinder question should be addressed sua sponte at the outset of
the litigation and ultimately dismissing Does 2 through 131 without
prejudice and granting the requested expedited discovery only with
respect to Doe defendant 1.) Accordingly, the court will authorize
expedited discovery only as to Doe 1 and recommend that the remaining
Doe defendants be dismissed without prejudice pursuant to Federal Rule
of Civil Procedure 21.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's ex parte application and motion for leave to take expedited discovery (Doc. No. 9) is granted in part;
2. Plaintiff may immediately serve a Rule 45 subpoena on the ISP Comcast Cable to obtain the following information regarding the subscriber (defendant John Doe 1) corresponding to the IP address 22.214.171.124: name, address, and e-mail address. The subpoena shall have a copy of this order attached.
3. The ISP, in turn, shall serve a copy of the subpoena and a copy of this order upon its relevant subscriber within 30 days from the date of service upon it. The ISP may serve the subscriber using any reasonable means, including written notice sent to the subscriber's last known address, transmitted either by first-class mail or via overnight service, or by e-mail notice.
4. The subscriber and the ISP shall each have 30 days from the respective dates of service upon them to file any motions contesting the subpoena (including a motion to quash or modify the subpoena).*fn4 If that period elapses without the filing of a contesting motion, the ISP shall have fourteen (14) days thereafter to produce the information responsive to the subpoena to plaintiff.
5. The subpoenaed ISP shall preserve any subpoenaed information pending the production of the information to plaintiff and/or the resolution of any timely-filed motion contesting the subpoena.
6. The ISP that receives a subpoena pursuant to this order shall confer with plaintiff before assessing any charge in advance of providing the information requested in the subpoena.
7. Any information disclosed to plaintiff in response to a Rule 45 subpoena may not be used for any improper purpose and may only be used for protecting plaintiff's rights as set forth in the Complaint.
8. Plaintiff's request for an order authorizing plaintiff to subpoena the Media Access Control address of any Doe defendant is denied without prejudice.
9. Plaintiff's request for an order authorizing plaintiff to subpoena the telephone number of any Doe ...