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New Sensations, Inc v. Does 1-306

October 17, 2012

NEW SENSATIONS, INC., PLAINTIFF,
v.
DOES 1-306, INCLUSIVE,
DEFENDANTS.



ORDER

Presently before the court is plaintiff's ex parte application for leave to serve third party subpoenas prior to the Rule 26 conference.*fn1 Dckt. No. 4. For the reasons stated herein, the request will be granted in part and denied in part.

I. BACKGROUND

Plaintiff, a motion picture production company, has filed this action against defendants Doe 1 through Doe 306, alleging claims for copyright infringement, negligence, contributory copyright infringement, and vicarious copyright infringement. See generally Compl., Dckt. No.

1. Plaintiff's complaint alleges that defendants traded (simultaneously uploaded and downloaded) one of plaintiff's copyrighted adult entertainment movies ("Dirty Little Schoolgirl Stories #4," the "Motion Picture") through torrent software. Id. ¶¶ 8, 10, 13. Plaintiff alleges that, through the use of forensic software, it identified an Internet Protocol ("IP") address associated with each defendant, as well as the date and time of the infringement by defendants. Id. ¶¶ 8, 14. Plaintiff further alleges that each of the defendants "has used, and continues to use, an online media distribution system (sometimes referred to as a 'peer to peer' network or a 'P2P' network) to reproduce at least one copy of the Motion Picture, and to distribute to the public, including by making available for distribution to other, copies of the Motion Picture." Id. ¶ 15. Plaintiff contends that "[e]ach defendant has acted in cooperation with the other defendants by agreeing to provide, and actually providing, on a P2P network an infringing reproduction of at least substantial portions of plaintiff's copyrighted Motion Picture, in anticipation of the other defendants doing likewise with respect to that work and/or other works." Id. ¶ 16. Plaintiff further alleges that "all of the defendants entered the same BitTorrent swarm, with the same hash, to engage in unlawful reproduction and distribution of plaintiff's copyrighted Motion Picture" and "[e]ach defendant traded the exact same file." Id.

Plaintiff alleges that "[e]ach Defendant is known to plaintiff only by the [IP] address assigned by an Internet Service Provider to the Internet account subscribed to and/or used by that defendant on the date and at the time at which the respective infringing . . . was observed." Id.

¶ 6. Plaintiff alleges that "information obtained in discovery will lead to the identification of the true names and addresses of defendants and will permit plaintiff to amend [its] complaint to state the same." Id. ¶ 7. Plaintiff contends that the defendants were properly joined under Federal Rule of Civil Procedure 20(a)(2) because they engaged in the same series of transactions and occurrences in that they all "traded exactly the same file of the copyrighted work" and "traded (simultaneously uploaded and downloaded) the exact same file as is the nature of torrent software." Id. ¶ 8.

II. DISCUSSION

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 306. Dckt. No. 4; see also Nicolini Decl., Dckt. No. 4-2. Specifically, plaintiff seeks to issue subpoenas to the various Internet Service Providers ("ISPs") used by John Does 1 through 306 (each of whom is identified by a unique IP address, which corresponds to the date and time of allegedly infringing activity) directing the ISPs "to produce any and all documents and/or information sufficient to identify the user or users of their respective IP addresses during the corresponding dates and times as listed in Exhibit A attached to the Complaint." Dckt. No. 4-1 at 1-2. Plaintiff contends that "[u]nless early discovery is granted, the information that Plaintiff requires to identify Defendants will be permanently lost because ISPs retain such information only for a limited time and will then delete it." Id. at 1.

Plaintiff contends that good cause supports its application for expedited discovery because (1) each Doe defendant is a real person or entity that can be sued in this federal court because each Doe defendant committed copyright infringement in a single transaction that occurred in this district; (2) plaintiff has made a prima facie showing of infringement; (3) there is no other way to identify the Doe defendants; (4) subpoenaing the ISPs will lead to identifying information because plaintiff's discovery requests are reasonably specific, and the ISPs keep a record of subscriber information associated with IP addresses; (5) the ISPs will likely destroy their logs prior to the Rule 26(f) conference; (6) plaintiff has demonstrated a central need for the subpoenaed information to advance the asserted claims; and (7) Doe defendants' expectation of privacy is protected by allowing them 30 days to quash the subpoena. Id. at 3-10.

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 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.*fn2 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. Seescandy.com, 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 ...


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