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Af Holdings LLC v. John Doe

October 23, 2012

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



The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S RENEWED EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY [ECF NO. 5]

Plaintiff's "Renewed Ex Parte Application for Leave to Take Expedited Discovery" was filed on August 13, 2012 [ECF No. 5]. Because no Defendant has been named or served, no opposition or reply briefs have been filed. For the reasons discussed below, the Renewed Ex Parte Application is GRANTED.

I. PROCEDURAL HISTORY

On June 20, 2012, Plaintiff AF Holdings, LLC ("AF Holdings") filed a Complaint with attachments [ECF No. 1]. The Plaintiff asserts copyright infringement claims against John Doe ("Defendant"). (Compl. 7-10, ECF No. 1.) Defendant allegedly copied and distributed a video that AF Holdings purports to be the registered owner of, and hold the exclusive rights to. (Id. at 1- 2.) First, the Plaintiff alleges a claim for direct copyright infringement, stating that on May 23, 2012, Defendant reproduced and distributed the copyrighted video through the Internet without Plaintiff's authorization. (Id. at 1, 7.) Second, AF Holdings pleads contributory copyright infringement, asserting that Defendant illegally obtained the video and assisted others in doing the same. (Id. at 1, 7-8.) Third, Plaintiff contends Defendant was negligent in failing to adequately secure his or her Internet access to prevent its unlawful use by others. (Id. at 9.)

Eight days after filing the Complaint, on June 28, 2012, AF Holdings filed an "Ex Parte Application for Leave to Take Expedited Discovery." (Pl.'s Ex Parte Appl. 1, ECF No. 3.) The Plaintiff sought permission to take "early discovery" from the Doe Defendant's Internet Service Provider ("ISP"), Cox Communications, to ascertain the Defendant's identity. (Id. at 1-2; see id. Attach. #1 Decl. Hansmeier 10 ("Plaintiff needs early discovery from the ISPs, so that the name and address of the accused infringer can be obtained by Plaintiff . . . .").)

The "Ex Parte Application for Leave to Take Expedited Discovery" was denied on July 25, 2012 [ECF No. 4]. The Court determined that emergency consideration was not necessary because Cox Communications maintains subscriber information for three years. (Order Den. Pl.'s Ex Parte Appl. 4, ECF No. 4.) The Court also held that AF Holdings failed to discuss whether its request was a proper subject for ex parte consideration. (Id. at 3.)

On August 13, 2012, Plaintiff filed a "Renewed Ex Parte Application for Leave to Take Expedited Discovery" [ECF No. 5]. There, AF Holdings argues that its original ex parte application seeking expedited discovery was proper and that the "IP assignment logs" it seeks will be destroyed within six months. (Pl.'s Renewed Ex Parte Appl. 2-3, ECF No. 5.) The Court finds that this document is more properly construed as an application for reconsideration of the Court's July 25, 2012 "Order Denying Plaintiff's Ex Parte Application for Leave to Take Expedited Discovery" [ECF No. 4].

II. APPLICATION FOR RECONSIDERATION

Motions or applications for reconsideration of prior orders are brought pursuant to Civil Local Rule 7.1(i). S.D. Cal. Civ. R. 7.1(i). In an application for reconsideration, a party seeking the same relief as that previously denied must set forth "(1) when and to what judge the [prior] application was made, (2) what ruling or decision or order was made thereon, and (3) what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application." Id. at 7.1(i)(1).

Here, Plaintiff seeks the same relief (expedited discovery) that was previously denied. (Pl.'s Renewed Ex Parte Appl. 1, ECF No. 5; Order Den. Pl.'s Ex Parte Appl. 3, ECF No. 4.) It contends that its original ex parte application was denied by this Court because AF Holdings failed to demonstrate that its request should be considered on an ex parte basis, and because the subscriber information did not face "imminent destruction." (Pl.'s Renewed Ex Parte Appl. 1, ECF No. 5.) Accordingly, Plaintiff has provided the information required for reconsideration pursuant to subsections one and two of Local Rule 7.1(i)(1). Next, Plaintiff must prove that new or different circumstances merit reconsideration of the Court's ruling.

A. "New or Different Facts and Circumstances"

1. Whether the application was a proper subject for ex parte consideration

AF Holdings maintains that its original application was properly designated as "ex parte" because Defendant's identity is unknown, and he therefore cannot be put on notice of the application. (Id. at 2.) Currently, Defendant is only known by his IP address. (Id.) "The only way Plaintiff can ascertain the Defendant's identity is to issue a subpoena to Defendant's Internet Service Provider, which is the sole entity that is in possession of Defendant's identifying information." (Id.) Plaintiff concludes that because there is no known party to oppose the application, ex parte relief is appropriate. (Id.)

In the Order Denying Plaintiff's Ex Parte Application for Leave to Take Expedited Discovery, the Court observed, "AF Holdings does not discuss whether its request is a proper subject for ex parte consideration or why the regular noticed motion procedures must be bypassed." (Order Den. Pl.'s Ex Parte Application for Leave 3, ECF No. 4.) In ...


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