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Ingenuity13 LLC v. John Doe

October 18, 2012

INGENUITY13 LLC,
PLAINTIFF,
v.
JOHN DOE,
DEFENDANT.



The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge

ORDER GRANTING IN PART PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY [Doc. No. 3]

Before the Court is an Ex Parte Application for Leave to Take Expedited Discovery filed by Plaintiff Ingenuity13 LLC. Doc. No. 3. For the reasons discussed below, Plaintiff's application is GRANTED IN PART.

PROCEDURAL HISTORY

On September 24, 2012, Plaintiff filed a Complaint against Defendant John Doe ("Defendant"). Compl., Doc. No. 1. Plaintiff purports to be the registered owner of United States Copyright Registration Number PA0001791654 for the adult entertainment video entitled "Five Fan Favorites." Compl., ¶¶ 3, 19 & Ex. A. The Complaint alleges claims for copyright infringement, contributory infringement, and negligence. Plaintiff alleges that Defendant, using IP address 72.220.226.162, without Plaintiff's authorization or license, intentionally downloaded a torrent file particular to Plaintiff's video, purposefully loaded that torrent file into his BitTorrent client, entered a BitTorrent swarm particular to Plaintiff's video, and reproduced and distributed the video to numerous third parties. Id., ¶ 22. Plaintiff's investigators detected Defendant's alleged illegal download on August 20, 2012. Id., ¶ 23.

Plaintiff seeks leave of court to serve a Rule 45 subpoena on Defendant's internet service provider ("ISP"), Cox Communications, to discover Defendant's name, address, telephone number, e-mail address, and Media Access Control ("MAC") address. Appl., Proposed Order.

LEGAL STANDARDS

Generally, discovery is not permitted without a court order before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Yet, "in rare cases, courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant." Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Courts grant these requests when the moving party shows good cause for the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002).

The Ninth Circuit has held that when the defendants' identities are unknown at the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to determine the defendants' identities "unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie, 629 F.2d at 642. A district court's decision to grant discovery to determine jurisdictional facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at 578.

District courts apply a three-factor test when considering motions for early discovery to identify certain defendants. Id. at 578-80. First, the plaintiff should "identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court." Id. at 578. Second, the movant must describe "all previous steps taken to locate the elusive defendant" to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff should establish that its suit against the defendant could withstand a motion to dismiss. Id. "[T]o prevent abuse of this extraordinary application of the discovery process and to ensure that the plaintiff has standing," the plaintiff must show that some act giving rise to liability actually occurred and that the discovery is aimed at identifying the person who actually committed the act. Id. at 579-80.

DISCUSSION

A. Identification of Missing Parties with Sufficient Specificity

First, Plaintiff must identify Defendant with enough specificity to enable the Court to determine that the defendant is a real person or entity who would be subject to the jurisdiction of this Court. Id. at 578. Some district courts in the Ninth Circuit have determined that a plaintiff identifies Doe defendants with sufficient specificity by providing the unique IP address assigned to an individual defendant on the day of the allegedly infringing conduct, and by using "geolocation technology" to trace the IP address to a physical point of origin. See Openmind Solutions, Inc. v. Does 1-39, No. C-11-33-11 MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm't v. Does 1-46, No. C-11-02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7 (N.D. Cal. June 21, 2011). Others have found that merely identifying the IP addresses assigned to the defendants on the day of the purported infringement is sufficient to satisfy the first factor. See MCIP, LLC v. Does 1-149, No. C-11-02331 LB, 2011 U.S. Dist. LEXIS 85363, at *4-5 (N.D. Cal. Aug. 15, 2011); First Time Videos, LLC v. Does 1- , No. C-11-01675 LB, 2011 U.S. Dist. LEXIS 42376, at *5 (N.D. Cal. April 14, 2011).

This Court, like other courts in this district, finds the former standard persuasive. , e.g., 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-CV-0186 MMA (RBB), 2012 U.S. Dist. LEXIS 62980, at *10-11 (S.D. Cal. May 8, 2012). Here, Plaintiff's forensic investigator, Peter Hansmeier, a technician with 6881 Forensics, LLC ("6881"), used his company's proprietary software to obtain the IP address of the computer used by Defendant, and conducted a search using publicly available reverse-lookup databases on the internet to identify the ISP used by Defendant's computer, the city (or county) and state in which the computer was located, and the date and time the IP address was obtained. Hansmeier Decl. in Supp. of Appl., ¶¶ 20, 24; Compl., ¶ 6. Using this information, Hansmeier determined the ISP that had provided the IP address associated with Defendant was Cox Communications, and the point of origin for the IP ...


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