The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S RENEWED EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY (Doc. No. 13)
On November 19, 2012, the Court issued an order denying without prejudice Plaintiff Quad International Inc.'s ("Plaintiff") ex parte application for leave to take expedited discovery. (Doc. 7.) Thereafter, the case was transferred from the Sacramento division to the Fresno division of the U.S. District Court for the Eastern District of California. On January 8, 2013, Plaintiff filed a renewed ex parte application for leave to take expedited discovery. (Doc. 13.) For the reasons set forth below, Plaintiff's motion is GRANTED.
On October 23, 2012, Plaintiff filed a complaint alleging copyright infringement, negligence, and contributory infringement of the adult entertainment video, "ScoreHD-Tokyo Pick-up" (the "Video") against a single defendant, identified as "John Doe." In the course of monitoring Internet-based infringement of its copyrighted content, Plaintiff's agents allegedly observed unlawful reproduction and distribution of the Video via the BitTorret file transfer protocol by defendant John Doe. Although Plaintiff does not known the actual identity of the defendant John Doe, Plaintiff's agents have identified defendant John Doe by an IP address, 18.104.22.168, and the date and time of the alleged unlawful activity. (Complaint ("Cmplt."), ¶¶ 1-2, 6.)
According to Plaintiff, only the Internet Service Provider, ("ISP") who issued the IP address connected with the unauthorized activity has the ability to identify the Doe defendant. Plaintiff asserts that it has identified Comcast Cable Communications LLC as the ISP who issued the IP address connected with the unauthorized activity. Plaintiff contends that ISPs only retain the identifying information for a limited period of time, for as little as months or even weeks before potentially permanently erasing the information. Thus, Plaintiff seeks an order granting expedited discovery to serve a Rule 45 subpoena on Comcast Cable Communications LLC to determine the identity of the Doe defendant, thereby permitting Plaintiff to amend its complaint to state the true name of the defendant and serve the defendant with process.
Generally, a party may not conduct discovery before the parties have met and conferred pursuant to Federal Rule of Civil Procedure 26(f). However, a court may authorize early discovery "for the parties' and witnesses' convenience and in the interests of justice." Fed. R. P. 26(d)(2). The moving party must show good cause for the early discovery. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). "Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." Id.
The Ninth Circuit has held that when a defendant's identity is unknown at the time the complaint is filed, a court may grant the plaintiff leave to take early discovery to determine the defendant's identity "unless it is clear that discovery would not uncover the identit[y], or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
District courts have further developed the Gillespie standard where the unknown defendants are anonymous internet users, taking into account the First Amendment concerns involved. See SaleHoo Grp., Ltd. v. ABC Co., 722 F. Supp. 2d 1210, 1213-17 (W.D. Wash. 2010). In Columbia Ins. Co. v. seescandy.com, 185 F.R.D 573, 578 (N.D. Cal. 1999), the district court discussed the issues involved:
With the rise of the Internet has come the ability to commit certain tortious acts, such as defamation, copyright infringement, and trademark infringement, entirely on-line. The tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying information. Parties who have been injured by these acts are likely to find themselves chasing the tortfeasor from Internet Service Provider ("ISP") to ISP, [footnote omitted] with little or no hope of actually discovering the identity of the tortfeasor.
In such cases the traditional reluctance for permitting filings against John Doe defendants or fictitious names and the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with [a] forum in which they may seek redress for grievances. However, this need must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously. People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one's mind without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate online 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.
The Columbia court, therefore, fashioned a four-part test predicated on the Gillespie standard set forth by the Ninth Circuit to determine whether early discovery was warranted whereby the moving party must: "(1) identify the defendant with enough specificity to allow the Court to determine whether the defendant is a real person or entity who could be sued in federal court;
(2) recount the steps taken to locate the defendant; (3) show that its action could survive a motion to dismiss; and (4) file a request for discovery with the Court identifying the persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information." SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC, 2011 WL 6002620, at *2 (N.D. Cal. Nov. 30, 2011) (summarizingtest set forth in Columbia, 185 F.R.D. at 578-90). In the context of parties seeking discovery in alleged online piracy, the court must balance "the need to provide injured parties with [a] forum in which they may seek redress for grievances" against "the legitimate and valuable right [of Internet users] to participate in online forums anonymously or ...