United States District Court, S.D. California
ORDER GRANTING MOTION FOR EARLY DISCOVERY [ECF NO.
Mitchell D. Dembin United States Magistrate Judge
the Court is Plaintiff’s Ex Parte Motion for
Leave to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference. This Motion first was filed on March 18, 2016 and
denied without prejudice on April 26, 2016, for failure to
present evidence supporting Plaintiff’s assertion that
the subscriber of the subject Internet Protocol address
likely resides within the jurisdiction of this Court. (ECF
Nos. 4, 5). Plaintiff refiled the motion on June 24, 2016,
but the motion package was missing Exhibit A to the
Declaration of Brenna Erlbaum. (ECF No. 8). When notified of
the discrepancy, Plaintiff filed the missing exhibit as a
standalone documents without properly linking it to the
Declaration. (ECF No. 10). Finally, Plaintiff filed a
complete package on July 12, 2016. (ECF No. 11). In support
of its renewed Motion, Plaintiff supplies the Declaration of
Brenna E. Erlbaum, which, including its attachment, cures the
deficiencies noted by the Court in its earlier Order.
Accordingly, Plaintiff’s Motion is GRANTED.
discovery generally is not permitted without a court order
before the parties have conferred pursuant to Federal Rule of
Civil Procedure 26(f). Fed.R.Civ.P. 26(d)(1).
“[H]owever, in rare cases, courts have made exceptions,
permitting limited discovery to ensue after filing of the
complaint to permit the plaintiff to learn the identifying
facts necessary to permit service on the defendant.”
Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573,
577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti,
629 F.2d 637, 642 (9th Cir. 1980)). Requests for early or
expedited discovery are granted upon a showing by the moving
party of good cause. See Semitool, Inc. v. Tokyo Electron
Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002)
(applying “the conventional standard of good cause in
evaluating Plaintiff’s request for expedited
Ninth Circuit has held that when the defendants’
identities are unknown at the time the complaint is filed,
courts may grant plaintiffs leave to take early discovery to
determine the defendants’ identities ‘unless it
is clear that discovery would not uncover the identities, or
that the complaint would be dismissed on other
grounds.’” 808 Holdings, LLC v. Collective of
December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA
(RBB), 2012 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting
Gillespie, 629 F.2d at 642). “A district
court’s decision to grant discovery to determine
jurisdictional facts is a matter of discretion.”
Columbia Ins., 185 F.R.D. at 578 (citing Wells
Fargo & Co. v. Wells Fargo Express Co., 556 F.2d
406, 430 n.24 (9th Cir. 1977)).
courts apply a three-factor test when considering motions for
early discovery to identify Doe defendants. Id. at
578-80. First, “the plaintiff should identify the
missing party with sufficient specificity such that the Court
can determine that defendant is a real person or entity who
could be sued in federal court.” Id. at 578.
Second, the plaintiff “should identify all previous
steps taken to locate the elusive defendant” to ensure
that the plaintiff has made a good faith effort to identify
and serve process on the defendant. Id. at 579.
Third, the “plaintiff should establish to the
Court’s satisfaction that plaintiff’s suit
against defendant could withstand a motion to dismiss.”
Id. (citing Gillespie, 629 F.2d at 642).
Further “the plaintiff should file a request for
discovery with the Court, along with a statement of reasons
justifying the specific discovery requested as well as
identification of a limited number of 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 about defendant that would make
service of process possible.” Id. at 580.
review of the motion and its supporting declarations, the
Court finds Plaintiff has sustained its evidentiary burden
and shown good cause to subpoena records from Time Warner
Cable identifying the subscriber assigned to the subject IP
address at the identified times. The subpoena must be limited
to documents identifying the subscriber’s name and
address during the relevant period. That information should
be sufficient for Plaintiff to be able to identify and serve
Defendant. If Plaintiff is unable to identify and serve
Defendant after receiving a response to the subpoena,
Plaintiff may seek leave from the Court to pursue additional
Court also must consider the requirements of the Cable
Privacy Act, 47 U.S.C. § 551. The Act generally
prohibits cable operators from disclosing personally
identifiable information regarding subscribers without the
prior written or electronic consent of the subscriber. 47
U.S.C. § 551(c)(1). A cable operator, however, may
disclose such information if the disclosure is made pursuant
to a court order and the cable operator provides the
subscriber with notice of the order. 47 U.S.C. §
551(c)(2)(B). The ISP that Plaintiff intends to subpoena in
this case is a cable operator within the meaning of the Act.
reasons set forth above, Plaintiff’s Ex Parte
Motion for Early Discovery is GRANTED, as follows:
Plaintiff may serve a subpoena, pursuant to and compliant
with the procedures of Fed.R.Civ.P. 45, on Time Warner Cable
seeking only the name and address of the subscriber assigned
to the subject IP address for the relevant time period.
subpoena must provide at least forty-five (45) calendar days
from service to production. Time Warner Cable may seek to
quash or modify the subpoena as provided at Rule 45(d)(3).
Warner Cable shall notify its subscriber, no later than
fourteen (14) calendar days after service of the subpoena,
that his or her identity has been subpoenaed by Plaintiff.
The subscriber whose identity has been subpoenaed shall then
have thirty (30) calendar days from the date of the notice to
seek a ...