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Af Holdings LLC v. John Doe

October 18, 2012

AF HOLDINGS LLC, PLAINTIFF,
v.
JOHN DOE, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

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

II. BACKGROUND

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 76.20.26.96." (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: "76.114.14.5." (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 76.20.26.96." (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 76.114.14.5." (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.)

III. DISCUSSION

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 76.114.14.5" 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 "76.114.14.5" 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 76.114.14.5 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).

III. DISCUSSION

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 ...


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