IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 18, 2012
AF HOLDINGS LLC, PLAINTIFF,
JOHN DOE, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is plaintiff's renewed ex parte application
for leave to conduct expedited discovery ("Renewed Application")
pursuant to Federal Rule of Civil Procedure 26(d)(1).*fn1
(Renewed Application, Dkt. No. 14.) For the third time in
this case, plaintiff seeks leave of court to serve a discovery
subpoena on nonparty Internet Service Provider ("ISP") Comcast Cable
Communications LLC ("Comcast"), and if necessary serve subpoenas on
other "intermediary ISPs," in order to obtain the true identity of
defendant "John Doe," who is alleged to have infringed on plaintiff's
copyrighted video entitled Popular Demand. (See generally Renewed
Application; see also, e.g., First Am. Compl., Dkt. No. 9 ¶¶ 1, 3-4).
As described below, the Renewed Application sufficiently addresses the
concerns raised in the undersigned's prior order denying without prejudice plaintiff's second
application for leave to conduct expedited discovery. (Order issued
Aug. 23, 2012, Dkt. No. 11.) In consideration of the Renewed
Application, and for the reasons stated below, the court grants
plaintiff's Renewed Application for leave to conduct limited early
discovery and authorizes plaintiff to serve nonparty subpoenas
pursuant to Federal Rule of Civil Procedure 45 and in accordance with
the remainder of this order.*fn2
On April 23, 2012, plaintiff filed its original complaint against defendant "John Doe," asserting claims of copyright infringement, contributory infringement, and negligence in regards to the copyrighted video entitled Popular Demand ("Video"). (See generally Compl., Dkt. No. 1.) On May 3, 2012, plaintiff filed an ex parte application for leave to conduct expedited discovery upon nonparty Comcast. (Dkt. No. 7.) On May 24, 2012, the undersigned granted the application and permitted the expedited discovery. (Order, Dkt. No. 8.)
On July 21, 2012, plaintiff filed a First Amended Complaint. (First Am. Compl., Dkt. No. 9.) On July 25, 2012, plaintiff filed a second ex parte application for expedited discovery ("Second Application"). (Second Application, Dkt. No. 10.) The undersigned denied the Second Application without prejudice for the reasons stated within an order issued on August 23, 2012. (Order, Dkt. No. 11.) In general, the order noted that plaintiff's nearly identical original and Second Applications targeted a single John Doe defendant but ascribed different IP addresses to him. (Id. at 1-4.) More specifically, plaintiff's original complaint and original application targeted a John Doe defendant with "IP address 126.96.36.199." (Compl. ¶ 4; Declaration of Peter Hansmeier ("Hansmeier Decl.") in support of original ex parte application, Dkt. No. 7-1 at ¶ 27.) Yet, plaintiff's amended pleading and Second Application targeted an entirely different IP address: "188.8.131.52." (First Am. Compl. ¶ 4; Second Hansmeier Decl., Dkt. No. 10-1 at ¶ 27.)
In the pending Renewed Application, plaintiff addresses the issues raised in undersigned's order of August 23, 2012. (Renewed Application, Dkt. No. 14.) Plaintiff explains that the Renewed Application became necessary when, in response to plaintiff's subpoena to Comcast, plaintiff learned that Comcast had "permanently deleted the identifying information associated with" the IP address stated within the original complaint (and in plaintiff's original application), namely "IP address 184.108.40.206." (Renewed Application, Dkt. No. 14 at 2; Declaration of Brett Gibbs ("Gibbs Decl."), Exh. A to Dkt. No. 14 ¶¶ 2-3.) Plaintiff also explained the bases for plaintiff's belief that Comcast had assigned John Doe a new IP address, namely, "IP address 220.127.116.11." (Gibbs Decl. ¶¶ 3-4.) This new IP address appears in plaintiff's amended pleading. (First Am. Compl. ¶ 4.)
Plaintiff's counsel now represents that plaintiff "did not obtain any of John Doe's identifying information pursuant to its first subpoena issued on Comcast." (Gibbs Decl. ¶ 2.) Plaintiff states that it is "not currently able to identify the Defendant in this action. Plaintiff is not attempting to seek the identifying information for a second, unrelated Defendant, but is simply attempting to obtain the necessary information to be able to identify, name and serve the lone unknown Defendant in this case." (Renewed Application at 3-4.)
Plaintiff alleges that it is the "exclusive holder of the relevant rights" with respect to the Video.*fn3 (First Am. Compl. ¶ 2.) Plaintiff alleges that John Doe, with "IP address 18.104.22.168" used an online peer-to-peer media distribution system, a "BitTorrent" file sharing protocol, to download the Video and then distribute the Video to numerous, unidentified third parties.*fn4 (See First Am. Compl. ¶¶ 4, 22-24.) Plaintiff alleges that it does not know the actual name of John Doe at this time.*fn5 (Id. ¶ 4.) However, through use of investigators, plaintiff has identified evidence of John Doe's alleged infringing activities, as well as identifying information about John Doe. Plaintiff represents that it has identified John Doe by the unique Internet Protocol ("IP") address "22.214.171.124" which corresponds with plaintiff's observation of John Doe's alleged infringing activities.*fn6 (See id. ¶¶ 4, 22-23; Declaration of Peter Hansmeier in support of Second Application ("Second Hansmeier Decl."), Dkt. No. 10-1 at ¶ 27.) Plaintiff's investigator declares that at some point after observing the alleged infringing activity, he "physically downloaded the [distributed] file and compared it to an actual copy of the Video to confirm that the file was a substantially-similar reproduction of the copyrighted Video." (Second Hansmeier Decl. ¶ 25.) Additionally, plaintiff determined that Comcast is the ISP that provided the above-referenced IP address to John Doe. (Id. ¶¶ 24, 28.)
Through the pending Renewed Application, plaintiff seeks to discover John Doe's actual name so that plaintiff may name him in an amended complaint and serve him with process. (See Renewed Application at 4 ("Plaintiff needs the identifying information associated with IP address 126.96.36.199 to be able to identify the Defendant in this case").) Plaintiff seeks leave of court to serve a Rule 45 subpoena on Comcast in order to learn the actual name of John Doe. Additionally, plaintiff asserts that certain ISPs lease or otherwise allocate excess IP addresses to unrelated ISPs, and that the absence of a direct relationship, such as a contractual relationship, between the "lessor ISP" and the end-user deprives the lessor ISP of the ability to identify alleged infringers like John Doe through user logs. (Second Application at 2; Second Hansmeier Decl. ¶ 30.) Accordingly, plaintiff also seeks leave to serve Rule 45 subpoenas on "lessee" ISPs to the extent that Comcast turns out to be a lessor ISP that cannot identify John Doe from Comcast's user logs and records. (See Second Application at 2; Second Hansmeier Decl. ¶ 30; Proposed Order at 1-2, Dkt. No. 10-3.)
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 26(d)(1) provides: "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" (emphasis added). District courts within the Ninth Circuit have permitted expedited discovery prior to the Rule 26(f) conference upon a showing of "good cause." See, e.g., In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008) (citing Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273 (N.D. Cal. 2002)); accord Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D. Cal. 2009). "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 (citation and quotation marks omitted).
Here, plaintiff seeks permission to conduct limited early discovery and serve Rule 45 subpoenas on ISPs that may very well be able to assist plaintiff in identifying the true identity of John Doe. District courts within the Ninth Circuit have regularly found good cause supporting early or expedited discovery in cases where the plaintiff alleged copyright infringement accomplished through distribution of the work over a peer-to-peer network, and where the plaintiff only named Doe defendants and sought early discovery to obtain the identities and contact information of the alleged infringers from associated ISPs. See, e.g., Berlin Media Art E.K. v. Does 1 through 146, No. S-11-2039 KJM GGH, 2011 WL 4056167, at *2 (E.D. Cal. Sept. 12, 2011) (unpublished) (granting leave to conduct expedited discovery in the form of Rule 45 subpoenas seeking "information sufficient to identify each Doe defendant by name, current and permanent address, telephone number, and e-mail address"); UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA, 2008 WL 4104214, at *4-5 (N.D. Cal. Sept. 3, 2008) (unpublished) (granting leave to conduct expedited discovery in the form of Rule 45 subpoenas seeking "documents that identify Defendant, including the name, current (and permanent) address and telephone number, e-mail address, and Media Access Control addresses for Defendant" John Doe); Arista Records LLC v. Does 1-43, No. 07cv2357-LAB (POR), 2007 WL 4538697, at *1-2 (S.D. Cal. Dec. 20, 2007) (granting leave to conduct expedited discovery in the form of Rule 45 subpoenas seeking documents that would reveal each Doe defendant's "true name, current and permanent addresses and telephone numbers, e-mail addresses, and Media Access Control addresses.").
For example, in Arista Records LLC, the plaintiffs alleged that unidentified defendants 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 IP address assigned to that defendant, plaintiffs filed an ex parte application seeking leave to immediately serve discovery on a nonparty ISPs to identify the Doe defendants' true identities. Id. The district court found good cause to allow expedited discovery on the basis of 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. Id.
Here, the undersigned finds that good cause supports permitting plaintiff to conduct limited early discovery in order to discover John Doe's actual identity and contact information.*fn7 First, plaintiff has persuasively argued that it cannot identify John Doe without limited early discovery and, therefore, cannot name John Doe or serve him with process. Second, plaintiff plainly cannot conduct a Rule 26(f) discovery conference without knowing John Doe's real name and contact information. Third, plaintiff's representations presently support that the IP address identified by plaintiff is associated with a particular individual, and that the discovery sought will facilitate identification of, and service of process on, John Doe. Fourth, plaintiff's investigative technician has declared that some ISPs store subscriber information associated with particular IP addresses for as little as months or weeks, which supports permitting expedited discovery. (Second Hansmeier Decl. ¶ 29; Gibbs Decl. ¶ 2 (explaining that Comcast indeed had, in the normal course of business, deleted the identifying information associated with the IP address listed in plaintiff's Second Application and original pleading in this case).) The undersigned also finds, at least on the present record, that there is little risk of material prejudice to John Doe or the ISPs if the ISPs are served with Rule 45 subpoenas that require the ISPs to provide the actual name and contact information of one of its customers. Finally, John Doe and each ISP may move to quash the subpoena or seek a protective order.
In short, good cause supports permitting plaintiff to conduct limited, expedited discovery. The minimal risk of prejudice to John Doe, Comcast, or any intermediary ISPs does not outweigh plaintiff's need for the discovery sought.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's renewed ex parte application to conduct expedited discovery (Dkt. No. 14) is granted.
2. Plaintiff may immediately serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Comcast Cable Communications LLC to identify the actual name and contact information for the John Doe defendant who is associated with IP address 188.8.131.52, and may also serve such subpoenas on any "intermediary" or "lessee" ISP that is identified as a direct result of the subpoena served on Comcast Cable Communications LLC as providing defendant John Doe with Internet services at IP address 184.108.40.206. Such subpoenas shall be limited in scope and may only seek the following information about defendant John Doe: name, address, telephone number, and e-mail address. A copy of this order shall be attached to any such subpoena.
3. Comcast Cable Communications LLC, and any other ISP subpoenaed pursuant to this order, shall in turn serve a copy of the subpoena and a copy of this order on the subscriber, defendant John Doe, within 14 days from the date of service of the subpoena on the ISP. An 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.
4. Any ISP served with a subpoena pursuant to this order shall confer with plaintiff before assessing any charge in advance of providing the information requested in the subpoena.
5. Nothing in this order precludes any of the ISPs or defendant John Doe from challenging the subpoenas consistent with the Federal Rules of Civil Procedure and this court's Local Rules. However, any such challenge, such as a motion to quash the subpoena or a motion for a protective order, shall be filed before the return date of the subject subpoena, and the return date shall be no earlier than 30 days from the date of service of the subpoena on the ISP.
6. If an ISP or the subscriber files a motion to quash or a motion for a protective order, the ISP shall preserve the information sought by the subpoena pending resolution of such a motion.
7. Any information disclosed to plaintiff by any ISP may only be used by plaintiff for the purpose of protecting its rights under the Copyright Act, 17 U.S.C. §§ 101 et seq., and other rights stated in the complaint.
IT IS SO ORDERED.