Case3:11-cv-02767-EDL Document9 Filed09/16/11 Page1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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` ZERO TOLERANCE ENTERTAINMENT,
`Plaintiff,
`
` v.
`DOES 1-2943,
`
`Defendant.
` /
`
`No. C -11-02767 EDL
`ORDER GRANTING IN PART
`PLAINTIFF’S EX PARTE APPLICATION
`FOR LEAVE TO TAKE LIMITED
`DISCOVERY PRIOR TO RULE 26(F)
`CONFERENCE
`
`On June 7, 2011, Plaintiff filed this copyright infringement suit against 2,943 separate Doe
`Defendants. On July 26, 2011, Plaintiff filed an Ex Parte Application for Leave to Take Expedited
`Discovery. Plaintiff seeks an order permitting it to serve subpoenas under Federal Rule of Civil
`Procedure 45 to compel Internet Service Providers (ISP) to produce personal identifying information
`for each Internet Protocol (IP) address linked to each individual Doe Defendant described in Exhibit
`A to the complaint.
`In a recent set of cases, the Court granted requests for early expedited discovery similar to
`that requested here upon a further showing regarding joinder. See Hard Drive Prods. v. Does 1-42,
`C-11-1956 EDL (N.D. Cal. Aug. 3, 2011) (Order Granting Plaintiff Leave to Take Early Discovery);
`Hard Drive Prods. v. Does 1-53, C-11-2330 EDL (N.D. Cal. Aug. 3, 2011) (Order Granting Plaintiff
`Leave to Take Early Discovery). Upon further consideration of the issues, the Court is now
`persuaded by the trend of the law in this District to revisit the issue. Accordingly, for the reasons
`stated below, Plaintiff’s Ex Parte Application is granted in part.
`Background
`In this case, Plaintiff alleges that the Doe Defendants illegally reproduced and distributed
`Plaintiff’s copyrighted video, “Official Wife Swap Parody” (“The Work”), thereby violating the
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`For the Northern District of California
`For the Northern District of California
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`United States District Court
`United States District Court
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`Case3:11-cv-02767-EDL Document9 Filed09/16/11 Page2 of 6
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`Copyright Act, 17 U.S.C. §§ 101, et seq. Compl. ¶¶ 8, 10. Plaintiff alleges that it believes that
`“each Defendant may be found in this district.” Compl. ¶ 2. However, Plaintiff also states in a
`declaration supporting this ex parte application that: “[W]e could determine that of the 2943 Doe
`Defendants in this case, at least 1 out of every 5 of the IP addresses is associated with a physical
`address that is likely in California, and of those more than 1 out of every 5 is likely in one of the
`counties within the Northern District of California.” Nicolini Decl. ¶ 23.
`According to Plaintiff, all Doe Defendants participated in a “peer-to-peer” network in which
`Defendants exchanged the Work over a period of 163 days using an internet file sharing method
`known as BitTorrent through which Defendants acted in cooperation with each other to commit
`copyright infringement. Compl. ¶ 10-11; Nicolini Decl. ¶¶ 5, 6, 16. BitTorrent is a decentralized,
`modern file sharing method used for distributing data on the internet. Nicolini Decl. ¶ 7. The
`BitTorrent protocol allows individual users to distribute data among themselves by exchanging
`pieces of the file with each other to eventually obtain a whole copy of the file. Id. The nature of the
`BitTorrent protocol has been comprehensively set forth in other decisions in this District, and is
`incorporated herein by reference. See, e.g., Diabolic Video Prods. v. Does 1-2099, 2011 WL
`3100404, *2-3 (N.D. Cal. May 31, 2011).
`Discussion
`Generally, a party may not initiate discovery before the parties have met and conferred
`pursuant to Federal Rule of Civil Procedure 26(f). However, a court may authorize earlier discovery
`“for the convenience of parties and witnesses and in the interests of justice.” Fed. R. Civ. P. 26(d).
`[W]here the identity of alleged defendants will not be known prior to the filing of a
`complaint[,] ... the plaintiff should be given an opportunity through discovery to
`identify the unknown defendants, unless it is clear that discovery would not uncover
`the identities, or that the complaint would be dismissed on other grounds.
`Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980). Thus, the first Gillespie factor is whether
`the requested discovery would fail to uncover the identities sought. The second factor is whether the
`claim against the defendant would be dismissed.
`Even if the first Gillespie factor is met in this case, the Court is not satisfied that Plaintiff has
`met the second Gillespie factor, that is, whether the complaint would be dismissed on other grounds.
`A recent line of cases in the Northern District of California have grappled with the question of
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`Case3:11-cv-02767-EDL Document9 Filed09/16/11 Page3 of 6
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`whether complaints for copyright infringement such as this one involving BitTorrent would, and
`should, be dismissed against all but the first Doe Defendant based on misjoinder. See Fed. R. Civ.
`Proc. 20(a) (permitting a plaintiff to join multiple defendants into one action if “(A) any right to
`relief is asserted against them . . . arising out of the same transaction, occurrence or series of
`occurrences; and (B) any question of law or fact common to all defendants will arise in the action.”).
`The Court is persuaded by the reasoning in the line of cases beginning with Diabolic Video in which
`courts have found that the use of BitTorrent technology does not satisfy the requirements for
`permissive joinder under Federal Rule of Civil Procedure 20(a). See Hard Drive Prods. v. Does 1-
`188, --- F.Supp.2d ---, 2011 WL 3740473 (N.D. Cal. Aug. 23, 2011) (Order Granting Doe
`24.5.180.56’s Motion to Quash); Boy Racer v. Does 2-52, C-11-2834 LHK (PSG) (N.D. Cal. Aug.
`5, 2011) (Order Granting in Part Plaintiff Boy Racer’s Ex Parte Application for Leave to Take
`Limited Discovery Prior to Rule 26(f) Conference); Pacific Century International v. Does 1-101,
`2011 WL 2690142 (N.D. Cal. July 8, 2011) (Order Granting Plaintiff’s Ex Parte Application for
`Leave to Take Expedited Discovery in Part; Severing Doe Defendants From Case and Ordering
`Dismissal of Their Claims); Diabolic Video, 2011 WL 3100404 (N.D. Cal. May 31, 2011)
`(Amended Order Granting in Part Motion for Leave to Take Limited Discovery Prior to Rule 26(f)
`Conference).
`The declaration provided by Mr. Nicolini in this case does not persuade the Court otherwise
`that the architecture of the BitTorrent technology justifies the joinder of otherwise unrelated
`defendants in a single action. Most significantly, even though Mr. Nicolini states in his declaration
`that all Defendants joined in the same BitTorrent swarm, there is no evidence to suggest that each of
`the addresses acted in concert with all of the others. See Nicolini Decl. ¶ 22 (“Further, the hashes
`associated with the torrent files on the computers having the IP addresses and time stamps listed in
`Exhibit A are all identical to each other, that is, they all have the same hash. This demonstrates that
`all the Doe defendants listed in Exhibit A joined the same swarm.”). In fact, as stated in Boy Racer,
`the almost six-month span covering the activity alleged in this case calls into question whether there
`was ever common activity linking the 2,943 addresses in this case. See Boy Racer v. Does 2-52, C-
`11-2834 LHK (PSG) (N.D. Cal. Aug. 5, 2011) (“In this age of instant digital gratification, it is
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`Case3:11-cv-02767-EDL Document9 Filed09/16/11 Page4 of 6
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`difficult to imagine, let alone believe, that an alleged infringer of the copyrighted work would
`patiently wait six weeks to collect the bits of the work necessary to watch the work as a whole.”).
`As a result, the Court finds unpersuasive the allegation that the Doe Defendants acted in concert.
`Therefore, the Court concludes that joinder of the Doe Defendants in this action does not satisfy
`Rule 20(a).
`Moreover, even if joinder of the Doe Defendants in this action met the requirements of Rule
`20(a), it is appropriate for the reasons stated in Hard Drive Prods. to exercise the Court’s discretion
`to sever and dismiss all but one Doe Defendant to avoid causing prejudice and unfairness to
`Defendants, and in the interest of justice.1 See Wynn v. National Broadcasting Co., Inc., 234
`F.Supp.2d 1067, 1088 (C.D. Cal. 2002). In particular, the Court adopts the reasoning from Hard
`Drive Prods.:
`
`First, permitting joinder in this case would undermine Rule 20(a)’s purpose of
`promoting judicial economy and trial convenience because it would result in a
`logistically unmanageable case. See Bridgeport Music, Inc. v. 11C Music, 202 F.R.D.
`229, 232-33 (M.D. Tenn) (holding permissive joinder of 770 putative defendants
`would not promote judicial economy because the court’s courtroom could not
`accommodate all of the defendants and their attorneys, and therefore could not hold
`case management conferences and could not try all of plaintiff's claims together).
`Second, permitting joinder would force the Court to address the unique defenses that
`are likely to be advanced by each individual Defendant, creating scores of mini-trials
`involving different evidence and testimony. In this respect, the Court also notes that
`in Exhibit A to the Complaint there are listed at least thirteen different internet
`service providers associated with Doe Defendants, which could also give rise to
`different ISP-specific defenses, evidence, and testimony. See Complaint, Ex. A.
`Finally, the Court finds that permissive joinder of the Doe Defendants does
`not comport with the “notions of fundamental fairness,” and that it will likely cause
`prejudice to the putative defendants. See Coleman , 232 F.3d at 1296. The joinder
`would result in numerous hurdles that would prejudice the defendants. For example,
`even though they may be separated by many miles and have nothing in common other
`than the use of BitTorrent, each defendant must serve each other with all pleadings –
`a significant burden when, as here, many of the defendants will be appearing pro se
`and may not be e-filers. Each defendant would have the right to be at each other
`defendant’s deposition – creating a thoroughly unmanageable situation. The
`courtroom proceedings would be unworkable – with each of the 188 Does having the
`opportunity to be present and address the court at each case management conference
`
`1
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`Plaintiff has consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c), and
`the Doe Defendants have not yet been served. Therefore, the Court has jurisdiction to dismiss the
`severed Defendants because the Doe Defendants are not yet parties under the meaning of 28 U.S.C. §
`636(c). See Ornelas v. De Frantz, 2000 WL 973684, *2, n.2 (N. D. Cal. 2000) (citing Neals v.
`Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (magistrate judge had jurisdiction to dismiss prisoner's civil
`rights action without consent of the defendants because the defendants had not been served yet and
`therefore were not parties)).
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`Case3:11-cv-02767-EDL Document9 Filed09/16/11 Page5 of 6
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`or other event. Finally, each defendant’s defense would, in effect, require a mini-trial.
`These burdens completely defeat any supposed benefit from the joinder of all Does in
`this case, and would substantially prejudice defendants and the administration of
`justice.
`Hard Drive Prods. v. Does 1-188, --- F.Supp.2d ---, 2011 WL 3740473 (N.D. Cal. Aug. 23, 2011) at
`*14 (Order Granting Doe 24.5.180.56’s Motion to Quash). The case management issues recognized
`in Hard Drive Prods. are magnified exponentially here where there are 2,943 Defendants and at least
`85 different internet service providers.
`In addition, the Court notes that here, as in Hard Drive Prods., Plaintiff’s allegation that all
`Doe Defendants meet the Rule 20(a) joinder requirements is speculative and conclusory. For
`example, Plaintiff essentially concedes that the Doe Defendants may not all have been physically
`present in the swarm at the same time. Nicolini Decl. ¶ 6 (“In P2P networks, the infringement may
`continue even after the original seeder has gone completely offline.”). Moreover, the Court notes
`that even if Plaintiff obtains the identifying information of the subscriber, which is what Plaintiff
`seeks through this ex parte application, Plaintiff still may not be able to identify exactly who
`downloaded Plaintiff’s work since other individuals at the subscriber’s address or at nearby
`addresses could have accessed the subscriber’s network to download the work. The Court notes that
`in a similar case, different counsel has sought additional invasive discovery based on this premise.
`Boy Racer, Inc. v. Doe, 11-2329 PSG (N.D. Cal. Aug. 30, 2011) (Plaintiff’s Case Management
`Conference Statement) at 2. As concluded by the court in Hard Drive Prods.: “In light of Plaintiff’s
`uncertainty about the role of each particular Doe Defendant and the relationship between the Doe
`Defendants, the Court finds it appropriate to exercise its discretion to sever all of the Doe
`Defendants but one in the interest of fairness.” Id. at 20. Further, the Court’s discretionary
`severance does not preclude Plaintiff from filing individual copyright infringement actions against
`each Doe Defendant.
`Conclusion
`Accordingly, for the reasons stated above, that Plaintiff may to serve immediate discovery on
`Doe 1’s ISP listed in Exhibit A to the Complaint by serving a Rule 45 subpoena that seeks
`information sufficient to identify Doe 1, including the name, addresses, telephone numbers, and
`email addresses of Doe 1. Plaintiff’s counsel shall issue its subpoena and shall include a copy of this
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`order.
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`Further, the ISP will have 30 days from the date of service upon it to serve Doe 1 with a copy
`of the subpoena and a copy of this order. The ISP may serve Doe 1 using any reasonable means,
`including written notice sent to Doe 1’s last known address, transmitted either by first-class mail or
`via overnight service. The ISP and Doe 1 each shall have 30 days from the date of service to file
`any motions in this court contesting the subpoena (including a motion to quash or modify the
`subpoena). If that 30-day period lapses without Doe 1 or the ISP contesting the subpoena, the ISP
`shall have 10 days to produce to Plaintiff the information responsive to the subpoena with respect to
`Doe 1.
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`In addition, the ISP shall not assess any charge to Plaintiff in advance of providing the
`information requested in the subpoena, and that the ISP that receives a subpoena and elects to charge
`for the costs of production shall provide a billing summary and cost reports that serve as a basis for
`such billing summary and any costs claimed by the ISP. The ISP shall preserve all subpoenaed
`information pending the ISP delivering such information to Plaintiff or the final resolution of a
`timely filed and granted motion to quash the subpoena with respect to such information. Any
`information disclosed to Plaintiff in response to a subpoena may be used by Plaintiff solely for the
`purpose of protecting its rights under the Copyright Act, 17 U.S.C. § 101 et seq.
`Does 2-2943 are dismissed without prejudice.
`IT IS SO ORDERED.
`Dated: September 15, 2011
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`ELIZABETH D. LAPORTE
`United States Magistrate Judge
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