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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`SMASH PICTURES,
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`Plaintiff,
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`CIV. NO. S-12-0301 JAM CKD
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`vs.
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`DOES 1-265,
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`Defendants.
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`ORDER
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`Presently before the court is plaintiff’s ex parte application for an order shortening
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`time for hearing on a motion to take expedited discovery. Plaintiff has noticed the motion for
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`hearing on April 4, 2012. Having reviewed the papers in support of the application and the
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`motion, the court concludes that oral argument would not be of material assistance, vacates the
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`hearing, and submits the matter on the papers.
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`BACKGROUND
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`In this action, filed February 3, 2012, plaintiff alleges copyright infringement of
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`the motion picture titled Bridesmaids XXX Porn Parody (“Motion Picture”) against Does 1-265.
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`In the course of monitoring Internet-based infringement of its copyrighted content, plaintiff’s
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`agents allegedly observed unlawful reproduction and distribution of the Motion Picture via the
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`Bit Torrent file transfer protocol by the Doe defendants. Although plaintiff does not know the
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`Case 2:12-cv-00301-JAM-CKD Document 7 Filed 03/07/12 Page 2 of 5
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`actual names of the Doe defendants, plaintiff’s agents created a log identifying them by their IP
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`addresses and the dates and times of their alleged unlawful activity. The IP addresses, internet
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`service providers (“ISPs”), and dates and times of the alleged unlawful activity by the Doe
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`defendants are identified in Exhibit 4 to plaintiff’s Complaint.
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`According to plaintiff, only the ISPs who issued the IP addresses connected with
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`the unauthorized activity have the ability to identify the Doe defendants. Plaintiff contends the
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`ISPs keep the identifying information for 90 to 180 days. Thus, plaintiff seeks an order granting
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`expedited discovery to serve Rule 45 subpoenas on the ISPs to obtain the names, addresses,
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`telephone numbers, and e-mail addresses of the Doe defendants, thereby permitting plaintiff to
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`amend its complaint to state the true name of each defendant and serve the proper defendants
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`with process.
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`DISCUSSION
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`Generally, Rule 26(d) of the Federal Rules of Civil Procedure provides that “[a]
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`party may not seek discovery from any source before the parties have conferred as required by
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`Rule 26(f), except ... when authorized by these rules, by stipulation, or by court order.” Fed. R.
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`Civ. P. 26(d) (emphasis added). Courts apply a “good cause” standard in considering motions to
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`expedite discovery. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal.
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`2002) (“Semitool”). “Good cause may be found where the need for expedited discovery, in
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`consideration of the administration of justice, outweighs the prejudice to the responding party.”
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`Id.
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`Good cause for expedited discovery is frequently found in cases involving claims
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`of infringement and unfair competition or in cases where the plaintiff seeks a preliminary
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`injunction. Id.; Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675,
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`676 (D. Colo. 2002). Moreover, several unpublished opinions from federal district courts in
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`California, applying the test in Semitool, found good cause to allow expedited discovery to
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`ascertain the identities of Doe defendants in copyright infringement actions. See e.g. UMG
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`Case 2:12-cv-00301-JAM-CKD Document 7 Filed 03/07/12 Page 3 of 5
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`Recordings, Inc. v. Doe, 2008 WL 4104207 (N.D. Cal. Sept. 4, 2008); Arista Records LLC v.
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`Does 1-43, 2007 WL 4538697 (S.D. Cal. Dec. 20, 2007).
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`In Arista Records LLC, the plaintiffs alleged that unidentified defendants had used
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`an online media distribution system to download and distribute plaintiffs’ copyrighted works to
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`the public without permission. Arista Records LLC, 2007 WL 4538697, at *1. Because the
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`plaintiffs were only able to identify each defendant by a unique internet protocol address assigned
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`to that defendant, plaintiffs filed an ex parte application seeking leave to serve immediate
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`discovery on a third-party ISP to identify the Doe defendants’ true identities. Id. The court
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`found good cause to allow expedited discovery based on the plaintiffs’ prima facie showing of
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`infringement, the risk that the ISP would not long preserve the information sought, the narrow
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`tailoring of the requests to the minimum amount of information needed to identify the defendants
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`without prejudicing their rights, and the fact that the expedited discovery would substantially
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`contribute to moving the case forward. Id. The court further noted that, without such discovery,
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`plaintiffs could not identify the Doe defendants and would not be able to pursue their lawsuit to
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`protect their copyrighted works from infringement. Id.
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`Here, plaintiff has similarly demonstrated its need for expedited discovery.
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`Plaintiff obviously cannot conduct a Rule 26(f) conference with unidentified defendants and will
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`need to conduct pre-conference discovery to ascertain the identities of the Doe defendants,
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`amend its complaint, and move the case forward. There does not appear to be any other way for
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`plaintiff to identify the defendants and pursue the lawsuit to protect its copyrighted Motion
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`Picture. Given that plaintiff has identified each potential defendant by the IP address assigned by
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`his or her ISP, it seems likely that the requested discovery will identify the unknown defendants.
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`Furthermore, there is some need for exigency given the risk that the information sought may be
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`inadvertently destroyed by ISPs in the ordinary course of business.
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`The need for expedited discovery must of course be balanced against the prejudice
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`to the responding party. Semitool, 208 F.R.D. at 276. In this case, the responding parties are
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`Case 2:12-cv-00301-JAM-CKD Document 7 Filed 03/07/12 Page 4 of 5
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`various ISPs. It is unclear what prejudice the ISPs would suffer if ordered to produce the
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`information plaintiff requests. Exhibit 4 shows 265 IP addresses to be identified by
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`approximately 20 providers. It would not seem to be excessively burdensome for these ISPs to
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`identify such a limited quantity of IP addresses.
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`Moreover, there is little risk of prejudice to the Doe defendants. “Expedited
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`discovery may be inappropriate where defendants are required to unwarily incriminate
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`themselves before they have a chance to review the facts of the case and to retain counsel.” Pod-
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`Ners, LLC, 204 F.R.D. at 676 (citations omitted). However, the expedited discovery requested
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`here is narrowly tailored and only seeks the minimum amount of information needed to identify
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`the potential defendants—their names, addresses, telephone numbers, and e-mail addresses.
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`Because the proposed discovery relates only to identifying and contact information, and does not
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`seek early admissions, answers to interrogatories, or depositions during which defendants may
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`“unwarily” incriminate themselves, concerns of undue prejudice are not present here.
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`In sum, good cause exists for expedited discovery in this matter, because
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`plaintiff’s need for the discovery outweighs any prejudice to the ISPs or the unidentified potential
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`defendants.
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`Accordingly, IT IS HEREBY ORDERED that:
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`1. Plaintiff’s ex parte application and motion for leave to take expedited
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`discovery (dkt. no. 6) is granted;
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`2. Plaintiff may immediately serve Rule 45 subpoenas on the ISPs listed in
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`Exhibit 4 to the Complaint to obtain the following information about the subscribers (Doe
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`defendants) corresponding to the IP addresses listed in the exhibit: their names, addresses,
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`telephone numbers, and e-mail addresses. Each subpoena shall have a copy of this order
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`attached.
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`3. The ISPs, in turn, shall serve a copy of the subpoena and a copy of this order
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`upon its relevant subscribers within 30 days from the date of service upon them. The ISPs may
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`Case 2:12-cv-00301-JAM-CKD Document 7 Filed 03/07/12 Page 5 of 5
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`serve the subscribers using any reasonable means, including written notice sent to the
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`subscriber’s last known address, transmitted either by first-class mail or via overnight service, or
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`by e-mail notice.
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`4. The subscribers and the ISPs shall each have 30 days from the respective dates
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`of service upon them to file any motions contesting the subpoena (including a motion to quash or
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`modify the subpoena). If that period elapses without the filing of a contesting motion, the ISPs
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`shall have ten (10) days thereafter to produce the information responsive to the subpoena to
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`plaintiff.
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`5. The subpoenaed ISPs shall preserve any subpoenaed information pending the
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`production of the information to plaintiff and/or the resolution of any timely-filed motion
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`contesting the subpoena.
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`6. Any ISP that receives a subpoena pursuant to this order shall confer with
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`plaintiff before assessing any charge in advance of providing the information requested in the
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`subpoena. Any ISP that elects to charge for the costs of production shall provide plaintiff with a
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`billing summary and cost reports.
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`7. Any information disclosed to plaintiff in response to a Rule 45 subpoena may
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`not be used for any improper purpose and may only be used for protecting plaintiff’s rights as set
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`_____________________________________
`CAROLYN K. DELANEY
`UNITED STATES MAGISTRATE JUDGE
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`forth in the First Amended Complaint.
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`Dated: March 7, 2012
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`mash301.exp.disc
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