Presently before the court is plaintiff's ex parte application for leave to serve a third party subpoena prior to the Rule 26 conference. Dckt. No. 6. For the reasons stated herein, the request will be granted.
Plaintiff, a producer of adult entertainment content, has filed this action against defendant
John Doe, alleging claims for copyright infringement, contributory infringement, and negligence. See generally Compl., Dckt. No. 1. Plaintiff's complaint alleges that John Doe "knowingly and illegally reproduced and distributed Plaintiff's copyrighted [adult entertainment video entitled "ScoreHD - Tokyo Pick-Up"] by acting in concert with others via the BitTorrent file sharing protocol and, upon information and belief, continues to do the same." Id. ¶ 1. Plaintiff alleges that "Defendant's actual name is unknown to Plaintiff" and instead "is known to Plaintiff only by an Internet Protocol address ('IP address'), which is a number assigned to devices, such as computers, connected to the Internet." Id. ¶ 4. According to plaintiff, "[i]n the course of monitoring Internet-based infringement of its copyrighted content, Plaintiff's agents observed unlawful reproduction and distribution occurring over IP address 184.108.40.206 via the BitTorrent file transfer protocol." Id. Plaintiff contends that it "cannot ascertain Defendant's actual identity without limited expedited discovery." Id.
On October 28, 2012, plaintiff filed an ex parte application for leave to take expedited discovery prior to the Rule 26 conference in order to obtain defendant John Doe's identity.
Dckt. No. 6; see also Hansmeier Decl., Dckt. No. 6-1. Specifically, plaintiff seeks to issue a subpoena to AT&T Internet Services, the third party internet service provider ("ISP") that provided internet access to John Doe. Dckt. No. 6 at 2; Hansmeier Decl. ¶¶ 24, 28. Plaintiff contends that it has gathered evidence of infringing activities, id. ¶¶ 16-27, and that when presented with the IP address at issue and the date and time of infringing activity, AT&T Internet Services should be able to identify the name and address of its subscriber, John Doe, because "[a]n ISP generally records the times and dates that it assigns each IP address to a subscriber and maintains for a period of time a record of such an assignment to a subscriber in logs maintained by the ISP." Id. ¶ 22. However, plaintiff argues that "ISPs typically keep log files of subscriber activities for only limited periods of time-sometimes for as little as months or even weeks-before erasing the data." Dckt. No. 6 at 2 (citing Hansmeier Decl. ¶¶ 22, 28-29).
Plaintiff contends that its request for expedited discovery should be granted because plaintiff's need for limited early discovery outweighs any prejudice to defendant, and that ex parte relief is proper since there is no known defendant with whom to confer and plaintiff's discovery request is directed at a third party. Dckt. No. 6 at 2. Specifically, plaintiff contends that without knowing defendant's identity, plaintiff "cannot name anyone in the complaint or serve them with process." Id. at 4. Plaintiff also argues that the ISP subscriber information "is on the verge of permanent destruction," and that when that information is destroyed, "Plaintiff will have no ability to identify John Doe, and thus will be unable to prosecute its copyright infringement claims." Id. Plaintiff also argues that the need for limited early discovery outweighs any prejudice to defendant since the request is limited in scope (plaintiff only seeks basic identifying information), defendant has a minimal expectation of privacy in his basic subscriber information, and the First Amendment is not a shield for copyright infringement. Id. at 6-10. Finally, plaintiff contends ex parte relief is proper since there is no known defendant with whom to confer. Id. at 10-11.
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 defendant John Doe, 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.*fn1 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); Berlin Media Art E.K. v. Does 1-146, 2011 WL 4056167 (E.D. Cal. Sept. 12, 2011) (authorizing expedited discovery as to the 146 Doe defendants); but see Hard Drive Prods., Inc. v. Doe, 2012 WL 90412 (E.D. Cal. Jan. 11, 2012) (denying request for expedited discovery where plaintiff sought to depose an individual that plaintiff was able to identify); Pac. Century Int'l Ltd. v. Does 1-101, 2011 WL 5117424 (N.D. Cal. Oct. 27, 2011) (denying request for expedited discovery).
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 have no desire to actually litigate but instead seems to be using the courts to pursue an extra-judicial business plan against possible infringers (and innocent others caught up in the ISP net)").*fn2
Here, plaintiff has demonstrated good cause to conduct the expedited discovery requested. Since John Doe is the only defendant asserted in the complaint, plaintiff cannot proceed with this lawsuit without obtaining John Doe's identity. UMG Recordings, Inc. v. Does 1-4, 2006 WL 1343597, at *1 (N.D. Cal. Apr. 19, 2006). Plaintiff's representations presently support that the IP address identified by plaintiff for John Doe -- 220.127.116.11 -- is associated with a particular individual, and that the discovery sought will facilitate identification of, and service of the summons and complaint on, that individual. Further, as plaintiff contends in its application, there is a risk that the ISP used by John Doe may destroy the information plaintiff about these sorts of expedited discovery matters. For example, a judge in the Central District of California ...