Case 2:12-cv-00302-JAM-CKD Document 10 Filed 03/02/12 Page 1 of 5
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`SMASH PICTURES,
`
`Plaintiff,
`
`CIV. NO. S-12-0302 JAM CKD
`
`vs.
`
`DOES 1-590,
`
`Defendants.
`
` /
`
`
`
`ORDER
`
`Presently before the court is plaintiff’s ex parte application for an order shortening
`
`time for hearing on a motion to take expedited discovery. Plaintiff has noticed the motion for
`
`hearing on March 21, 2012. Having reviewed the papers in support of the application and the
`
`motion, the court concludes that oral argument would not be of material assistance and submits
`
`the matter on the papers.
`
`BACKGROUND
`
`In this action, filed February 3, 2012, plaintiff alleges copyright infringement of
`
`the motion picture titled Bridesmaids XXX Porn Parody (“Motion Picture”) against Does 1-590.
`
`In the course of monitoring Internet-based infringement of its copyrighted content, plaintiff’s
`
`agents allegedly observed unlawful reproduction and distribution of the Motion Picture via the
`
`Bit Torrent file transfer protocol by the Doe defendants. Although plaintiff does not know the
`1
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`
`Case 2:12-cv-00302-JAM-CKD Document 10 Filed 03/02/12 Page 2 of 5
`
`actual names of the Doe defendants, plaintiff’s agents created a log identifying them by their IP
`
`addresses and the dates and times of their alleged unlawful activity. The IP addresses, internet
`
`service providers (“ISPs”), and dates and times of the alleged unlawful activity by the Doe
`
`defendants are identified in Exhibit 4 to plaintiff’s Complaint.
`
`According to plaintiff, only the ISPs who issued the IP addresses connected with
`
`the unauthorized activity have the ability to identify the Doe defendants. Plaintiff contends the
`
`ISPs keep the identifying information for 90 to 180 days. Thus, plaintiff seeks an order granting
`
`expedited discovery to serve Rule 45 subpoenas on the ISPs to obtain the names, addresses,
`
`telephone numbers, and e-mail addresses of the Doe defendants, thereby permitting plaintiff to
`
`amend its complaint to state the true name of each defendant and serve the proper defendants
`
`with process.
`
`DISCUSSION
`
`Generally, Rule 26(d) of the Federal Rules of Civil Procedure provides that “[a]
`
`party may not seek discovery from any source before the parties have conferred as required by
`
`Rule 26(f), except ... when authorized by these rules, by stipulation, or by court order.” Fed. R.
`
`Civ. P. 26(d) (emphasis added). Courts apply a “good cause” standard in considering motions to
`
`expedite discovery. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal.
`
`2002) (“Semitool”). “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.
`
`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. Id.; Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675,
`
`676 (D. Colo. 2002). Moreover, several unpublished opinions from federal district courts in
`
`California, applying the test in Semitool, found good cause to allow expedited discovery to
`
`ascertain the identities of Doe defendants in copyright infringement actions. See e.g. UMG
`2
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`
`Case 2:12-cv-00302-JAM-CKD Document 10 Filed 03/02/12 Page 3 of 5
`
`Recordings, Inc. v. Doe, 2008 WL 4104207 (N.D. Cal. Sept. 4, 2008); Arista Records LLC v.
`
`Does 1-43, 2007 WL 4538697 (S.D. Cal. Dec. 20, 2007).
`
`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.
`
`Here, plaintiff has similarly demonstrated its need for expedited discovery.
`
`Plaintiff obviously cannot conduct a Rule 26(f) conference with unidentified defendants and will
`
`need to conduct pre-conference discovery to ascertain the identities of the Doe defendants,
`
`amend its complaint, and move the case forward. There does not appear to be any other way for
`
`plaintiff to identify the defendants and pursue the lawsuit to protect its copyrighted Motion
`
`Picture. Given that plaintiff has identified each potential defendant by the IP address assigned by
`
`his or her ISP, it seems likely that the requested discovery will identify the unknown defendants.
`
`Furthermore, there is some need for exigency given the risk that the information sought may be
`
`inadvertently destroyed by ISPs in the ordinary course of business.
`
`The need for expedited discovery must of course be balanced against the prejudice
`
`to the responding party. Semitool, 208 F.R.D. at 276. In this case, the responding parties are
`3
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`
`Case 2:12-cv-00302-JAM-CKD Document 10 Filed 03/02/12 Page 4 of 5
`
`various ISPs. It is unclear what prejudice the ISPs would suffer if ordered to produce the
`
`information plaintiff requests. Exhibit 4 shows 590 IP addresses to be identified by
`
`approximately 20 providers. It would not seem to be excessively burdensome for these ISPs to
`
`identify such a limited number of IP addresses.
`
`Moreover, there is little risk of prejudice to the Doe defendants. “Expedited
`
`discovery may be inappropriate where defendants are required to unwarily incriminate
`
`themselves before they have a chance to review the facts of the case and to retain counsel.” Pod-
`
`Ners, LLC, 204 F.R.D. at 676 (citations omitted). However, the expedited discovery requested
`
`here is narrowly tailored and only seeks the minimum amount of information needed to identify
`
`the potential defendants—their names, addresses, telephone numbers, and e-mail addresses.
`
`Because the proposed discovery relates only to identifying and contact information, and does not
`
`seek early admissions, answers to interrogatories, or depositions during which defendants may
`
`“unwarily” incriminate themselves, concerns of undue prejudice are not present here.
`
`In sum, good cause exists for expedited discovery in this matter, because
`
`plaintiff’s need for the discovery outweighs any prejudice to the ISPs or the unidentified potential
`
`defendants.
`
`Accordingly, IT IS HEREBY ORDERED that:
`
`1. Plaintiff’s ex parte application and motion for leave to take expedited
`
`discovery (dkt. no. 9) is granted;
`
`2. Plaintiff may immediately serve Rule 45 subpoenas on the ISPs listed in
`
`Exhibit 4 to the Complaint to obtain the following information about the subscribers (Doe
`
`defendants) corresponding to the IP addresses listed in the exhibit: their names, addresses,
`
`telephone numbers, and e-mail addresses. Each subpoena shall have a copy of this order
`
`attached.
`
`3. The ISPs, in turn, shall serve a copy of the subpoena and a copy of this order
`
`upon its relevant subscribers within 30 days from the date of service upon them. The ISPs may
`4
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`
`Case 2:12-cv-00302-JAM-CKD Document 10 Filed 03/02/12 Page 5 of 5
`
`serve the subscribers using any reasonable means, including written notice sent to the
`
`subscriber’s last known address, transmitted either by first-class mail or via overnight service, or
`
`by e-mail notice.
`
`4. The subscribers and the ISPs shall each have 30 days from the respective dates
`
`of service upon them to file any motions contesting the subpoena (including a motion to quash or
`
`modify the subpoena). If that period elapses without the filing of a contesting motion, the ISPs
`
`shall have ten (10) days thereafter to produce the information responsive to the subpoena to
`
`plaintiff.
`
`5. The subpoenaed ISPs shall preserve any subpoenaed information pending the
`
`production of the information to plaintiff and/or the resolution of any timely-filed motion
`
`contesting the subpoena.
`
`6. Any ISP that receives a subpoena pursuant to this order shall confer with
`
`plaintiff before assessing any charge in advance of providing the information requested in the
`
`subpoena. Any ISP that elects to charge for the costs of production shall provide plaintiff with a
`
`billing summary and cost reports.
`
`7. Any information disclosed to plaintiff in response to a Rule 45 subpoena may
`
`not be used for any improper purpose and may only be used for protecting plaintiff’s rights as set
`
`forth in the First Amended Complaint.
`
`Dated: March 2, 2012
`
`_____________________________________
`CAROLYN K. DELANEY
`UNITED STATES MAGISTRATE JUDGE
`
`4 s
`
`mash.exp.disc
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`5