`
`Ira M. Siegel, Cal. State Bar No. 78142
`email address: irasiegel@earthlink.net
`LAW OFFICES OF IRA M. SIEGEL
`433 N. Camden Drive, Suite 970
`Beverly Hills, California 90210-4426
`Tel:
`310-435-7656
`Fax: 310-657-2187
`
`Attorney for Plaintiff New Sensations, Inc.
`
`
`
`
`NEW SENSATIONS, INC.,
`
`UNITED STATES DISTRICT COURT
`
`Northern District of California
`
`San Francisco Division
`No. C 11-2770 MEJ
`
`(Proposed) AMENDED ORDER
`GRANTING PLAINTIFF’S EX PARTE
`APPLICATION FOR LEAVE TO
`TAKE LIMITED EXPEDITED
`DISCOVERY
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`
`
`DOES 1-1,474,
`
`
`
`Defendants.
`
`
`
`_____________________________________/
`
`
`
`
`
`This Order amends and replaces the Order issued by the Court on August 24, 2011 (Dkt.
`
`No. 9).
`
`I. INTRODUCTION
`
`
`
`Plaintiff New Sensations, Inc. (“Plaintiff”) has filed an ex parte Application pursuant to
`
`Federal Rules of Civil Procedure 26 and 45, requesting leave to take expedited discovery to
`
`determine the identity of 1,474 Doe Defendants (collectively, “Defendants”) named in this action.
`
`Dkt. No. 5 (“Pl.’s App.”). For the reasons provided below, the Court GRANTS Plaintiff’s
`
`Application.
`
`II. BACKGROUND
`
`
`
`On June 7, 2011, Plaintiff filed this lawsuit against 1,474 Doe Defendants, alleging that
`
`Defendants illegally reproduced and distributed a work subject to Plaintiff’s exclusive license,
`
`(“Big Bang Theory: A XXX Parody”), using an internet peer-to-peer (“P2P”) file sharing network
`
`1
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page2 of 12
`
`known as BitTorrent, and thereby violated the Copyright Act, 17 U.S.C. § 101-1322. Compl. ¶¶
`
`6-15, Dkt. No. 1. Plaintiff alleges that because the alleged infringement occurred on the Internet,
`
`Defendants acted under the guise of their Internet Protocol (“IP”) addresses rather than their real
`
`names. Id. at ¶ 10; Pl.’s App. at 5-6. As a result, Plaintiff contends that it cannot determine
`
`Defendants’ true identities without procuring the information from Defendants’ respective
`
`Internet Service Providers (“ISPs”), which can link the IP addresses to a real individual or entity.
`
`Pl.’s App. at 6. Consequently, Plaintiff asks the Court to grant it expedited discovery to issue
`
`subpoenas to the relevant ISPs so that the ISPs will produce the name, address, telephone
`
`number, and email address for each Defendant. Id. at 25, Ex. 1.
`
`III. LEGAL STANDARD
`
`
`
`Pursuant to Federal Rule of Civil Procedure (“Rule”) 26(d)(1), a court may authorize
`
`early discovery before the Rule 26(f) conference for the parties’ convenience and in the interest
`
`of justice. Courts within the Ninth Circuit generally use a “good cause” standard to determine
`
`whether to permit such discovery. See, e.g., Apple Inc. v. Samsung Electronics Co., Ltd., 2011
`
`WL 1938154, at *1 (N.D. Cal. May 18, 2011); Semitool, Inc. v. Tokyo Electron America, Inc.,
`
`208 F.R.D. 273, 276 (N.D. Cal. 2002). “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.” Semitool, 208 F.R.D. at 276. The court must perform this evaluation in light
`
`of “the entirety of the record . . . and [examine] the reasonableness of the request in light of all
`
`the surrounding circumstances.” Id. at 275 (citation & quotation marks omitted). In determining
`
`whether there is good cause to allow expedited discovery to identify anonymous internet users
`
`named as doe defendants, courts consider whether: (1) the plaintiff can 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; (2) the plaintiff has identified all previous steps taken
`
`to locate the elusive defendant; (3) the plaintiff’s suit against defendant could withstand a motion
`
`to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of being
`
`able to identify the defendant through discovery such that service of process would be possible.
`
`Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
`
`2
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page3 of 12
`
`IV. DISCUSSION
`
`A. Whether Plaintiff has Identified the Defendants with Sufficient Specificity
`
`
`
`Under the first factor, the Court must examine whether Plaintiff has identified the
`
`Defendants with sufficient specificity, demonstrating that each Defendant is a real person or
`
`entity who would be subject to jurisdiction in this Court. See id. at 578. Here, Plaintiff proffers
`
`that it retained Copyright Enforcement Group, LLC (“CEG”), which utilized forensic software to
`
`identify Defendants’ IP addresses on the date and time that they engaged in the alleged
`
`distribution of Big Bang Theory: A XXX Parody via the BitTorrent protocol, and has compiled
`
`the information into a log attached as Exhibit A to Plaintiff’s Complaint. Pl.’s App. at 9; Decl. of
`
`Jon Nicolini ¶¶ 10-16, Dkt. No. 5-1. Plaintiff explains that Defendants gained access to the
`
`Internet only by setting up an account through various ISPs, and that by providing the ISPs the
`
`information detailed in Exhibit A, the ISPs can look up the Defendants’ identities by reviewing
`
`their respective subscriber activity logs. Nicolini Decl. ¶¶ 18-20. Thus, the Court finds that
`
`Plaintiff has come forward with sufficient information demonstrating that the Defendants are real
`
`persons or entities who may be sued in federal court. See MCGIP, LLC v. Does 1-149, 2011 WL
`
`3607666, at *2 (N.D. Cal. Aug. 15, 2011) (finding that the plaintiff had 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 alleged the particular defendant engaged in the
`
`infringing conduct).
`
`B. Whether Plaintiff has Identified All Previous Steps to Locate Defendants
`
`
`
`Under the second factor, the Court must assess the prior steps Plaintiff has taken to locate
`
`the Defendants. See Columbia Ins. Co., 185 F.R.D. at 579. “This element is aimed at ensuring
`
`that plaintiffs make a good faith effort to comply with the requirements of service of process and
`
`specifically identifying defendants.” Id. Here, Plaintiff contends that it has exhausted all possible
`
`means to find the Defendants’ names, addresses, phone numbers, and email addresses. Pl.’s App.
`
`at 9. In support, Plaintiff cites to paragraphs 18 through 20 of Mr. Nicolini’s Declaration. Id.
`
`Reviewing Mr. Nicolini’s testimony, he states CEG’s System inspects file-sharing networks for
`
`computers that are distributing at least a substantial portion of a copy of a copyrighted work
`
`3
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page4 of 12
`
`owned by Plaintiff, and when CEG finds such a computer, CEG’s System also collects publicly
`
`accessible information, including the time and date the infringer was found, the IP address
`
`assigned to the infringer’s computer, the size of the accused file, and the name of the ISP having
`
`control of the IP address. Nicolini Decl. ¶ 18. Mr. Nicolini states that, because of the partially
`
`anonymous nature of the P2P Internet distribution system used by Defendants, CEG is unable to
`
`determine their true names, street addresses, telephone numbers, and email addresses. Id.
`
`CEG utilizes its data collection system to find digital files on the Internet that have the same title
`
`First, to locate swarms1 where peers were distributing Big Bang Theory: A XXX Parody,
`
`
`
`as the copyrighted work. Id. ¶¶ 11, 14. Mr. Nicolini states that, in this case, the P2P network on
`
`which CEG found unauthorized distribution of Big Bang Theory: A XXX Parody was a
`
`BitTorrent network. Id. ¶ 16. CEG then downloads a full copy of the file, which is then
`
`forwarded to a two-stage verification computer process and identified by two people. Id. ¶ 17.
`
`The process compares the digital data in the suspect file with digital data in a digital copy of the
`
`motion picture obtained from Plaintiff. Id. If the suspect file matches the authorized file, then the
`
`two people play the suspect file and watch the motion picture. Id. If both people confirm that a
`
`substantial portion of the motion picture in the suspect file is substantially the same as a
`
`corresponding portion of Big Bang Theory: A XXX Parody, then particular unique data (often
`
`referred to as metadata) in the suspect file is noted by CEG’s System, and the System searches
`
`for additional computers on P2P networks that have the same suspect file. Id.
`
`
`
`After locating and inspecting computers that are distributing at least a substantial portion
`
`of a copy of Big Bang Theory: A XXX Parody, Mr. Nicolini states that CEG’s System collects (a)
`
`the time and date the infringer was found, (b) the time(s) and date(s) when a portion of the
`
`accused file was downloaded successfully to the accused infringer’s computer, (c) the time and
`
`
`1P2P networks distribute infringing copies of copyrighted works with file sharing software such
`as BitTorrent when one user accesses the Internet through an ISP and intentionally makes a
`digital file of a work available to the public from his or her computer. Nicolini Decl. ¶ 6. This
`file is referred to as the first “seed.” Id. Other users, who are referred to as “peers,” then access
`the Internet and request the file. Id. These users engage each other in a group, referred to as a
`“swarm,” and begin downloading the seed file. Id. As each peer receives portions of the seed,
`that peer makes those portions available to other peers in the swarm. Id.
`4
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page5 of 12
`
`date the infringer was last successfully connected to via the P2P network with respect to the
`
`infringer’s computer’s downloading and/or uploading the accused file to the Internet, (d) the IP
`
`address assigned to the infringer’s computer, (e) the P2P software application used by the
`
`infringer and the port number used by the infringer’s P2P software, (f) the size of the accused
`
`file, (g) the percent of the file downloaded by CEG from the infringer’s computer, (h) the percent
`
`of the accused file on the infringer’s computer which is available at that moment for copying by
`
`other peers, and (i) any relevant transfer errors. Id. ¶ 18. In addition, CEG uses available
`
`databases to record the name of the ISP having control of the IP address and the state (and often
`
`the city or county) associated with that IP address. Id.
`
`C. Whether Plaintiff’s Suit Against Defendants Could Withstand a Motion to Dismiss
`
`
`
`Under the third factor, the inquiry shifts to the substance of Plaintiff’s claims and
`
`analyzes whether Plaintiff’s Complaint would likely survive a motion to dismiss. See Columbia
`
`Ins. Co., 185 F.R.D. at 579. In its Complaint, Plaintiff has asserted a federal copyright
`
`infringement claim. To state a claim for copyright infringement, Plaintiff must establish: (1)
`
`ownership of a valid copyright, and (2) copying of constituent elements of the copyrighted work
`
`that are original. Rice v. Fox Broad. Corp., 330 F.3d 1170, 1174 (9th Cir. 2003) (citing Feist
`
`Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). “To be liable for direct
`
`infringement, one must ‘actively engage in’ and ‘directly cause’ the copying.” Online Policy
`
`Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1199 (N.D. Cal. 2004). Reviewing Plaintiff’s
`
`Complaint, Plaintiff has adequately alleged that Big Bang Theory: A XXX Parody is the subject
`
`of a valid Certificate of Registration issued by the United States Copyright Office and that
`
`Plaintiff is the exclusive rightsholder of the distribution and reproduction rights of Big Bang
`
`Theory: A XXX Parody. Compl. ¶¶ 7, 8. Plaintiff has also alleged that the Defendants reproduced
`
`and distributed Big Bang Theory: A XXX Parody via BitTorrent to numerous third parties. Compl.
`
`¶¶ 10-12. Additionally, Plaintiff has alleged that Defendants actively engaged in or directly
`
`caused the copying by completing each of the steps in the BitTorrent file-sharing protocol,
`
`including intentionally downloading a torrent file particular to Big Bang Theory: A XXX Parody,
`
`loading that torrent file into the BitTorrent client, entering a BitTorrent swarm particular to Big
`
`5
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page6 of 12
`
`Bang Theory: A XXX Parody, and ultimately, downloading and uploading pieces of a Big Bang
`
`Theory: A XXX Parody file to eventually obtain a whole copy of the file. Id. Based on these
`
`allegations, the Court finds that Plaintiff has pled a prima facie case of copyright infringement
`
`and set forth sufficient supporting facts to survive a motion to dismiss.
`
`D. Whether there is a Reasonable Likelihood of Being Able to Identify Defendants
`
`
`
`The fourth factor examines whether Plaintiff has demonstrated that there is a reasonable
`
`likelihood that the discovery it requests will lead to the identification of Defendants such that it
`
`may effect service of process. See Columbia Ins., 185 F.R.D. at 580. As indicated above,
`
`Plaintiff contends that the key to locating the Defendants is through the IP addresses associated
`
`with the alleged activity on BitTorrent. Specifically, Plaintiff contends that because ISPs assign a
`
`unique IP address to each subscriber and retain subscriber activity records regarding the IP
`
`addresses assigned, the information sought in the subpoena will enable Plaintiff to serve
`
`Defendants and proceed with this case. See Pl.’s App. at 6; Nicolini Decl. ¶¶ 19-20. Taking this
`
`into account, the Court finds that Plaintiff has made a sufficient showing as to this factor.
`
`E.
`
`
`
`Summary
`
`Taking the foregoing factors into consideration, the Court finds that Plaintiff has
`
`demonstrated that good cause exists to grant it leave to conduct early discovery. Moreover, the
`
`Court finds that the expedited discovery sought furthers the interests of justice and presents
`
`minimal inconvenience to the ISPs to which the subpoenas are directed. Thus, the expedited
`
`discovery is in
`
`line with Rule 26(d).
`
`F.
`
`
`
`Joinder of 1,474 Defendants
`
`Having found that expedited discovery is appropriate, the question becomes whether the
`
`discovery sought is proper as to all 1,474 Defendants. Plaintiff presents a lengthy discussion in
`
`its Application as to why its decision to name join 1,474 Defendants is justified under Rule 20.
`
`See Pl.’s App. at 11-19. Under Rule 20, defendants may be joined in one action when claims
`
`arise from the same transaction or occurrence or series of transactions or occurrences, and any
`
`question of law or fact in the action is common to all defendants. Fed. R. Civ. P. 20(a)(2). The
`
`6
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page7 of 12
`
`permissive joinder rule “is to be construed liberally in order to promote trial convenience and to
`
`expedite the final determination of disputes, thereby preventing multiple lawsuits.” League to
`
`Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1997). The
`
`purpose of Rule 20(a) is to address the “broadest possible scope of action consistent with fairness
`
`to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine
`
`Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). Rule 20(a) imposes two specific requisites
`
`to the joinder of parties: (1) a right to relief must be asserted by, or against, each plaintiff or
`
`defendant relating to or arising out of the same transaction or occurrence, and (2) some question
`
`of law or fact common to all the parties must arise in the action. Fed. R. Civ. P. 20(a). Both of
`
`these requirements must be satisfied in order to justify party joinder under Rule 20(a). Id. In
`
`situations of misjoinder of parties, Rule 21 provides that “[o]n motion or on its own, the court
`
`may at any time, on just terms, add or drop a party.”
`
`
`
`
`
`1.
`
`Same Transaction, Occurrence, or Series of Transactions or Occurrences
`
`“The Ninth Circuit has interpreted the phrase ‘same transaction, occurrence, or series of
`
`transactions or occurrences’ to require a degree of factual commonality underlying the claims.”
`
`Bravado Int'l Group Merchandising Servs. v. Cha, 2010 WL 2650432, at *4 (C.D. Cal. June 30,
`
`2010) (citing Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997)). Typically, this means
`
`that a party “must assert rights . . . that arise from related activities-a transaction or an occurrence
`
`or a series thereof.” Id. (citation omitted). Recently, courts in this District – as well as several
`
`other federal districts – have come to varying decisions about the proprietary of joining multiple
`
`defendants in BitTorrent infringement cases. See MCGIP, LLC v. Does 1-149, 2011 WL
`
`3607666, at 3 (N.D. Cal. Aug. 15, 2011) (listing a sample of recent decisions). This Court has
`
`carefully reviewed such decisions and notes that they are highly dependent on the information
`
`the plaintiff presented regarding the nature of the BitTorrent file-sharing protocol and the
`
`specificity of the allegations regarding the Doe defendants’ alleged infringement of the protected
`
`work. Both of these factors guide the Court’s joinder analysis in this matter as well. Reviewing
`
`Plaintiff’s Application and supporting materials, Plaintiff has provided a fairly detailed
`
`7
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page8 of 12
`
`explanation about how the BitTorrent protocol operates. See Nicolini Decl. ¶¶ 6, 7, 22. Mr.
`
`Nicolini explains:
`
`
`
`P2P networks distribute infringing copies of motion pictures (and works in
`other forms such as music and books) with file sharing software such as
`BitTorrent as follows: The process begins with one user accessing the Internet
`through an Internet Service Provider ("ISP") and intentionally making a digital
`file of the work available on the Internet to the public from his or her computer.
`This first file is often referred to as the first "seed." I will refer to the person
`making this seed available as the "original seeder." Persons seeking to download
`such a work also access the Internet through an ISP (which may or may not be the
`same ISP as used by the original seeder) and seek out the work on a P2P network.
`With the availability of the seed, other users, who are referred to as "peers,"
`access the Internet and request the file (by searching for its title or even searching
`for the torrent's "hash" - described below) and engage the original seeder and/or
`each other in a group, sometimes referred to as a “swarm,” and begin
`downloading the seed file. In turn, as each peer receives portions of the seed, most
`often that peer makes those portions available to other peers in the swarm.
`Therefore, each peer in the swarm is at least copying and is usually distributing,
`as a follow-on seeder, copyrighted material at the same time. Of the over 20,000
`infringers tracked in connection with several cases currently pending, at least 95%
`of the Doe defendants were uploading (i.e., distributing) illegal copies of our
`clients' motion pictures at the moment indicated by the Timestamp in the
`respective Exhibit A appended to each complaint, which is also true for this case.
`In P2P networks, the infringement may continue even after the original seeder has
`gone completely offline. Any BitTorrent client may be used to join a swarm. As
`more peers join a swarm at any one instant, they obtain the content at even greater
`speeds because of the increasing number of peers simultaneously offering the
`content as seeders themselves for unlawful distribution. As time goes on, the size
`of the swarm varies, yet it may endure for a long period, with some swarms
`enduring for 6 months to well over a year depending on the popularity of a
`particular motion picture.
`
`Nicolini Decl. ¶ 6. Based on this information, the Court finds that Plaintiff has at least presented
`
`a reasonable basis to argue that the BitTorrent protocol functions in such a way that peers in a
`
`single swarm downloading or uploading a piece of the same seed file may fall within the
`
`definition of “same transaction, occurrence, or series of transactions or occurrences” for purposes
`
`of Rule 20(a)(1)(A).
`
`
`
`Further, the Court finds that Plaintiff has provided enough specificity to make a
`
`preliminary determination that the 1,474 Doe Defendants here were part of the same swarm.
`
`Reviewing Exhibit A to Plaintiff’s Complaint, Defendants’ alleged infringing activity occurred
`
`over a period of over nine months, from August 2010 through June 2011. See Compl, Ex. A.
`
`While this period might seem protracted, with respect to any particular swarm, the hash (an
`
`alphanumeric representation of a digital file) associated with the copied file’s torrent file remains
`
`8
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page9 of 12
`
`the same within that swarm. Nicolini Decl. ¶ 6. For each of the 1,474 Doe Defendants, Plaintiff
`
`has provided an identical hash. Compl, Ex. A. Based on these allegations, Plaintiff’s claims
`
`against the Doe Defendants appear logically related. Each putative Defendant is a possible
`
`source for Plaintiff’s copyrighted work, and may be responsible for distributing the work to the
`
`other putative Defendants, who are also using the same file-sharing protocol to copy the identical
`
`copyrighted material. See Disparte v. Corporate Executive Bd., 223 F.R.D. 7, 10 (D.D.C. 2004)
`
`(to satisfy Rule 20(a)(2)(A) claims must be “logically related” and this test is “flexible.”). While
`
`the Doe Defendants may be able to rebut these allegations later, Plaintiff has sufficiently alleged
`
`that its claims against the defendants potentially stem from the same transaction or occurrence,
`
`and are logically related. See Arista Records LLC v. Does 1–19, 551 F. Supp.2d 1, 11 (D.D.C.)
`
`(“While the Court notes that the remedy for improper joinder is severance and not dismissal, . . .
`
`the Court also finds that this inquiry is premature without first knowing Defendants’ identities
`
`and the actual facts and circumstances associated with Defendants’ conduct.”). Plaintiff has
`
`made a preliminary showing that these Defendants were present in the same Big Bang Theory: A
`
`XXX Parody swarm on BitTorrent and shared pieces of the same seed file containing Big Bang
`
`Theory: A XXX Parody.
`
`
`
`
`
`2.
`
`Question of Law or Fact Common to All Defendants
`
`Rule 20(a)(2)(B) requires Plaintiff’s claims against the putative Doe Defendants to
`
`contain a common question of law or fact. Here, Plaintiff will have to establish against each
`
`Defendant the same legal claims concerning the validity of the copyright in Big Bang Theory: A
`
`XXX Parody and the infringement of the exclusive rights reserved to Plaintiff as copyright holder.
`
`Furthermore, Plaintiff alleges that the Defendants utilized the same BitTorrent file-sharing
`
`protocol to illegally distribute and download Big Bang Theory: A XXX Parody and, consequently,
`
`factual issues related to how BitTorrent works and the methods used by Plaintiff to investigate,
`
`uncover, and collect evidence about the infringing activity will be essentially identical for each
`
`Defendant. See Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 343 (D.D.C.
`
`2011). The Court recognizes that each putative defendant may later present different factual and
`
`substantive legal defenses “but that does not defeat, at this stage of the proceedings, the
`
`9
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page10 of 12
`
`commonality in facts and legal claims that support joinder under Rule 20(a)(2)(B).” Id.
`
`
`
`
`
`3.
`
`Prejudice to Any Party or Needless Delay
`
`Finally, the Court assesses whether joinder would prejudice the parties or result in
`
`needless delay. Joinder in a single case of the putative defendants who allegedly infringed the
`
`same copyrighted material promotes judicial efficiency and, in fact, is beneficial to the putative
`
`defendants. Id. at 344; London–Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 161 (D. Mass.
`
`2008) (court consolidated separate Doe lawsuits for copyright infringement since the “cases
`
`involve similar, even virtually identical, issues of law and fact: the alleged use of peer-to-peer
`
`software to share copyrighted sound recordings and the discovery of defendants’ identities
`
`through the use of a Rule 45 subpoena to their internet service provider. Consolidating the cases
`
`ensures administrative efficiency for the Court, the plaintiffs, and the ISP, and allows the
`
`defendants to see the defenses, if any, that other John Does have raised.”).
`
`
`
`Here, Plaintiff is currently obtaining identifying information from ISPs so that they can
`
`properly name and serve the defendants. If the Court were to consider severance at this juncture,
`
`Plaintiff would face significant obstacles in its efforts to protect its copyright from illegal file-
`
`sharers and this would only needlessly delay the case. Plaintiff would be forced to file 1,474
`
`separate lawsuits, in which it would then move to issue separate subpoenas to ISPs for each
`
`defendant’s identifying information. Plaintiff would additionally be forced to pay the Court
`
`separate filing fees in each of these cases, which would further limit its ability to protect its legal
`
`rights. “This would certainly not be in the ‘interests of convenience and judicial economy,’ or
`
`‘secure a just, speedy, and inexpensive determination of the action.’” Call of the Wild, 770 F.
`
`Supp. 2d at 334 (citation omitted) (declining to sever defendants where parties joined promotes
`
`more efficient case management and discovery and no party prejudiced by joinder).
`
`
`
`Further, the Doe Defendants are currently identified only by their IP addresses and are
`
`not named parties. Consequently, they are not required to respond to Plaintiff’s allegations or
`
`assert a defense. Defendants may be able to demonstrate prejudice once Plaintiff proceeds with
`
`its case against them, but they cannot demonstrate any harm that is occurring to them before that
`
`time. Id.
`
`10
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page11 of 12
`
`
`
`Thus, the Court finds that, at this preliminary stage, Plaintiff has met the requirements of
`
`permissive joinder under Rule 20(a)(2). The putative defendants are not prejudiced but likely
`
`benefitted by joinder, and severance would debilitate Plaintiff’s efforts to protect its copyrighted
`
`material and seek redress from the Doe Defendants who have allegedly engaged in infringing
`
`activity. To be fair, the Court recognizes that the questions of joinder and severance must be
`
`deferred until after discovery has been authorized and any motions to quash filed. The Court is
`
`also cognizant of the logistical and administrative challenges of managing a case with numerous
`
`putative defendants, a number of whom may seek to file papers pro se. However, severing the
`
`putative defendants at this early stage is no solution to ease the administrative burden of the
`
`cases. The Court therefore declines to sever the Doe Defendants at this time.
`
`V. CONCLUSION
`
`
`
`For the reasons stated above, the Court GRANTS Plaintiff’s Ex Parte Application for
`
`Expedited Discovery (Dkt. No. 5) as follows:
`
`
`
`1. IT IS HEREBY ORDERED that Plaintiff is allowed to serve immediate discovery on
`
`Does 1-1,474’s ISPs listed in Exhibit A to the Complaint by serving a Rule 45 subpoena that
`
`seeks information sufficient to identify the Doe Defendants, including the name, address,
`
`telephone number, and email address of Does 1-1,474. Plaintiff’s counsel shall issue the
`
`subpoena and attach a copy of this Order.
`
`
`
`2. IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service
`
`upon them to serve Does 1-1,474 with a copy of the subpoena and a copy of this Order. The ISP
`
`may serve the Doe Defendants using any reasonable means, including written notice sent to his
`
`or her last known address, transmitted either by first-class mail or via overnight service.
`
`
`
`3. IT IS FURTHER ORDERED that Does 1-1,474 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 Does 1-1,474 contesting the subpoena,
`
`the ISP shall have 10 days to produce the information responsive to the subpoena to Plaintiff.
`
`
`
`4. IT IS FURTHER ORDERED that the subpoenaed entity shall preserve any
`
`subpoenaed information pending the resolution of any timely-filed motion to quash.
`
`11
`(Proposed) Amended Order Granting Plaintiff’s Ex Parte
`Application for Leave to Take Limited Expedited Discovery-Case No. CV 11-2770 MEJ
`
`
`
`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
` 27
` 28
`
`
`
`
`
`Case3:11-cv-02770-MEJ Document13 Filed09/22/11 Page12 of 12
`
`
`
`5. IT IS FURTHER ORDERED that the ISP that receives a subpoena pursuant to this
`
`order shall confer with Plaintiff and shall not assess any charge in advance of providing the
`
`information requested in the subpoena. 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.
`
`
`
`6. IT IS FURTHER ORDERED that Plaintiff shall serve a copy of this order along with
`
`any subpoenas issued pursuant to this order to t