United States District Court, S.D. California
ORDER DENYING EX PARTE MOTION TO EXPEDITE DISCOVERY
[ECF NO. 4]
BARBARA L. MAJOR, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's February 13, 2018
“EX PARTE APPLICATION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE.”
ECF No. 4. Because the Defendant has not been identified, no
opposition or reply briefs have been filed. Having reviewed
Plaintiff's motion and all supporting documents, the
Court DENIES the motion for the reasons set
alleges that it “is the owner of original, award
winning motion pictures featured on its subscription-based
adult website.” ECF No. 4-1 at 6. On January 31, 2018,
Plaintiff filed a complaint against John Doe 22.214.171.124
alleging copyright infringement. ECF No. 1
(“Compl.”). Plaintiff alleges that Defendant has
illegally infringed by downloading and distributing thirty of
its copyrighted movies over the BitTorrent File Distribution
Network for an extended period of time. Id. at 2, 4.
Plaintiff describes the BitTorrent network as a “system
designed to quickly distribute large files over the
Internet.” Id. at 4. Plaintiff further alleges
that Defendant, who “attempted to hide this theft by
infringing Plaintiff's content anonymously” can be
identified by his or her Internet Service Provider
(“ISP”), Spectrum (“Time Warner
Cable”), through his or her IP address 126.96.36.199.
Id. at 2.
February 13, 2018, Plaintiff filed the instant motion. ECF
No. 4. Plaintiff seeks an order from the Court allowing it to
serve a subpoena to Defendant's ISP seeking
Defendant's true name and address pursuant to Federal
Rule of Civil Procedure 45 so that Plaintiff may serve
Defendant and prosecute the claims in its complaint. ECF No.
4-1 at 7.
may not seek discovery from any source before the Rule 26(f)
conference unless that party first obtains a stipulation or
court order permitting early discovery. Fed.R.Civ.P.
26(d)(1). Courts in the Ninth Circuit apply the “good
cause” standard in deciding whether to permit early
discovery. Semitool, Inc. v. Tokyo Electron America,
Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (adopting the
conventional standard of “good cause” in
evaluating a request for expedited discovery). Good cause
exists “where the need for expedited discovery, in
consideration of the administration of justice, outweighs the
prejudice to the responding party.” Id. Good
cause for expedited discovery has been found in cases
involving claims of infringement and unfair competition.
Id. In infringement cases, expedited discovery is
frequently limited to allowing plaintiffs to identify Doe
defendants. See UMG Recordings, Inc. v. Doe, 2008 WL
4104207, at *3 (N.D. Cal. Sept. 4, 2008) (granting leave to
take expedited discovery for documents that would reveal the
identity and contact information for each Doe defendant).
courts in the Ninth Circuit apply a three-factor test for
determining whether good cause exists to allow for expedited
discovery to identify certain defendants. Columbia Ins.
Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal.
1999). First, the plaintiff should “identify the
missing party with sufficient specificity such that the Court
can determine that the defendant is a real person or entity
who could be sued in federal court.” Id. at
578. Second, the plaintiff must describe “all previous
steps taken to locate the elusive defendant” to ensure
that plaintiff has made a good faith effort to identify the
defendant. Id. at 579. Third, plaintiff should
establish that its lawsuit could withstand a motion to
Court to grant Plaintiff's motion, Plaintiff must first
identify the Doe defendant with sufficient specificity to
enable the Court to determine that the Doe defendant is a
real person subject to the Court's jurisdiction.
Id. at 578. “Some district courts in the Ninth
Circuit have determined that a plaintiff identifies Doe
defendants with sufficient specificity by providing the
unique IP addresses assigned to an individual defendant on
the day of the allegedly infringing conduct, and by using
“geolocation technology” to trace the IP
addresses to a physical point of origin.” 808
Holdings, LLC v. Collective of Dec. 29, 2011 Sharing
Hash E37917C8EEB4585E6421358FF32F29C D63C23C91,
No. 12CV00186 MMA (RBB), 2012 WL 12884688, at *4 (S.D. Cal.
May 8, 2012); see e.g., OpenMind Sols., Inc. v.
Does 1-39, No. C 11-3311 MEJ, 2011 WL 4715200, at *2
(N.D. Cal. Oct. 7, 2011) (finding plaintiff met its burden to
identify the Doe defendants with sufficient specificity by
identifying the unique IP addresses of individuals engaged in
BitTorrent protocol and using geolocation technology to trace
the IP addresses to a point of origin within the state of
California); Pink Lotus Entm't, LLC v. Does
1-46, No. C-11-02263 HRL, 2011 WL 2470986, at *3 (N.D.
Cal. June 21, 2011) (same). “Others have found that
merely identifying the IP addresses assigned to the
defendants on the day of the purported infringement is
sufficient to satisfy the first factor.” 808
Holdings, LLC, 2012 WL 12884688, at *4; see
e.g., First Time Videos, LLC v. Does, No. C
11-01675 LB, 2011 WL 1431619, at *2 (N.D. Cal. Apr. 14, 2011)
(“First, First Time Videos has identified the Doe
defendants with sufficient specificity by submitting a chart
listing each of the defendants by the IP address assigned to
them on the day it alleges the particular defendant engaged
in the infringing conduct.”).
the Court finds Plaintiff has failed to identify Defendant
with sufficient specificity to enable the Court to determine
Defendant would be subject to its jurisdiction. Plaintiff
alleges in its complaint that it used “IP address
geolocation technology by Maxmind Inc. (‘Maxmind'),
an industry-leading provider of IP address intelligence and
online fraud detection tools, to determine that
Defendant's IP address traced to a physical address in
this District.” Compl. at 2; see also ECF No. 4-1 at
12. However, the allegation that Defendant's IP address
traced to a physical address in this District is not
supported in any declaration filed in support of the instant
Motion that would indicate, for example, who used the
geolocation technology, when it was used, and how it is
probative of the physical location of the subscriber.
Accordingly, no evidentiary support was provided to show that
Defendant's IP address likely resolves to a physical
address located in this District, and this Court cannot rely
on Plaintiff's unsupported assertions regarding the use
and accuracy of the geolocation technology Plaintiff contends
to have applied. Therefore, the instant Motion must fail
because there is no reliable evidence to support the
allegation that Defendant is subject to this Court's
jurisdiction. See Columbia Ins. Co., 185 F.R.D. at
reasons discussed above, the Court DENIES without
prejudice Plaintiff's ex parte motion for leave
to serve a third party subpoena prior to a Rule 26(f)