Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page1 of 12
`
`UNITED STATES DISTRICT COURT
`Northern District of California
`
`NEW SENSATIONS, INC.,
`Plaintiff,
`
`v.
`DOES 1-1,474,
`
`Defendants.
`
`No. C 11-2770 MEJ
`ORDER GRANTING PLAINTIFF’S
`EX PARTE APPLICATION FOR
`LEAVE TO TAKE LIMITED
`EXPEDITED DISCOVERY
`Docket No. 5
`
`_____________________________________/
`
`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 known
`as BitTorrent, and thereby violated the Copyright Act, 17 U.S.C. § 101-1322. Compl. ¶¶ 6-15, Dkt.
`
`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
`
`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page2 of 12
`
`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).
`
`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
`
`2
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page3 of 12
`
`A.
`
`IV. DISCUSSION
`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 owned
`
`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
`
`3
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page4 of 12
`
`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.
`First, to locate swarms1 where peers were distributing Big Bang Theory: A XXX Parody,
`CEG utilizes its data collection system to find digital files on the Internet that have the same title 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
`
`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
`
`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
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page5 of 12
`
`was downloaded successfully to the accused infringer’s computer, (c) the time and 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.
`Based on Mr. Nicolini’s explanation of the foregoing steps as utilized to investigate
`Defendants’ activity with respect to Big Bang Theory: A XXX Parody on the BitTorrent protocol, the
`Court finds that Plaintiff has sufficiently described its efforts to identify Defendants.
`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
`
`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
`
`5
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page6 of 12
`
`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 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
`
`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
`
`6
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page7 of 12
`
`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 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
`
`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
`
`7
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page8 of 12
`
`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 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
`
`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
`
`8
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page9 of 12
`
`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 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
`
`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
`
`9
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page10 of 12
`
`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 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
`
`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
`
`10
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page11 of 12
`
`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.
`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.
`
`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
`
`11
`
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`
`

`
`Case3:11-cv-02770-MEJ Document9 Filed08/24/11 Page12 of 12
`
`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.
`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 the necessary entities.
`7. IT IS FURTHER ORDERED that any information disclosed to Plaintiff in response to a
`Rule 45 subpoena may be used by Plaintiff solely for the purpose of protecting Plaintiff's rights as
`set forth in its complaint.
`IT IS SO ORDERED.
`
`Dated: August 24, 2011
`
`_______________________________
`Maria-Elena James
`Chief United States Magistrate Judge
`
`12
`
`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
`
`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT