`
`UNITED STATES DISTRICT COURT
`Northern District of California
`
`AXEL BRAUN,
`Plaintiff,
`
` v.
`PRIMARY DISTRIBUTOR DOE NUMBER
`1 and DEFENDANT DOES 2 through 38,
`Defendants.
`_____________________________________/
`
`No. C 12-5786 MEJ
`and related cases: 12-5812 MEJ
` 12-5813 MEJ
` 12-5814 MEJ
`ORDER GRANTING EX PARTE
`APPLICATIONS FOR LEAVE TO
`TAKE EARLY DISCOVERY
`
`Plaintiff Axel Braun (“Plaintiff”) brings these four related cases accusing Doe Defendants1 of
`using BitTorrent technology to illegally download copyrighted files from the Internet. Plaintiff has
`filed Ex Parte Applications in each of the cases pursuant to Federal Rule of Civil Procedure (“Rule”)
`26, requesting leave to take expedited discovery to determine the identity of Defendants
`(“Defendants”) named in these action.2 For the reasons explained below, the Court GRANTS
`Plaintiff’s Application.
`
`BACKGROUND
`Braun is an individual doing business as Axel Braun Productions, with his principal place of
`business located in Porter Ranch, California. Compl. ¶ 9, Dkt. No. 1. Axel Braun Productions
`directs, markets, and distributes adult entertainment products, including Internet website content,
`videos, DVDs, and photographs. Id. ¶ 10. Plaintiff is the co-producer and co-claimant of the
`
`1 Plaintiff is suing 38 Doe Defendants in 12-5786, 40 in 12-5812, 151 in 12-5813, and 129 in
`12.5814. The Court shall refer to these Doe Defendants collectively as “Defendants.”
`
`2 The applications are: Dkt. No. 6 in 12-5786; Dkt. No. 5 in 12-5812; Dkt. No. 5 in 12-5813;
`Dkt. No. 6 in 12-5814. Because the related cases have virtually identical facts, citations herein
`reference documents filed in 12-5786, unless otherwise noted.
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`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
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`
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`Case3:12-cv-05814-MEJ Document10 Filed12/06/12 Page2 of 11
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`copyrights in the motion picture, Star Wars XXX: A Porn Parody.3 Id. ¶ 32. Plaintiff registered the
`copyright for Star Wars XXX: A Porn Parody with the United States Copyright Office, and the
`Copyright Office assigned the work the registration number PA 1-787-699. Id.
`Plaintiff alleges that Defendants used BitTorrent, an internet peer-to-peer (“P2P”) file
`sharing network, to illegally reproduce and distribute Star Wars XXX: A Porn Parody in violation of
`the Copyright Act, 17 U.S.C. § 101 et seq. Id. ¶¶ 17-28, 33-35. Plaintiff further alleges that by
`using the BitTorrent program to download and distribute Plaintiff’s content, each Defendant is liable
`for contributory infringement. Id. ¶¶ 37-45. Because the alleged infringement occurred on the
`Internet, Plaintiff states that Defendants acted under the guise of their Internet Protocol (“IP”)
`addresses rather than their real names. Strassmeir Decl. ¶ 18, Dkt. No. 6-1. 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. Id. ¶ 24. Consequently, Plaintiff asks the Court to grant expedited discovery to
`issue subpoenas to the relevant ISPs so that the ISPs will produce identifying information for each
`Defendant.
`
`DISCUSSION
`Rule 26(d)(1) prohibits discovery without a court order prior to a Rule 26(f) conference
`between the parties. Courts generally use a “good cause” standard to decide whether to permit such
`early discovery. Semitool, Inc. v. Tokyo Electron Am., 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 of the responding party.” Id. at 276. To
`determine whether there is “good cause” to permit expedited discovery to identify anonymous
`internet user doe defendants, courts consider whether:
`
`3 Plaintiff states that he and Vivid Entertainment, LLC jointly produced and created Star
`Wars XXX: A Porn Parody, but the originally filed registration application mistakenly omitted Axel
`Braun Productions. Compl. at 8, fn. 1. The claimants have submitted a supplemental registration
`naming Axel Braun Productions as a co-claimant and the Copyright Office is currently processing
`the supplement registration. Id.
`
`2
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`Case3:12-cv-05814-MEJ Document10 Filed12/06/12 Page3 of 11
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`(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.
`OpenMind Solutions, Inc. v. Does 1–39, No. 11–3311, 2011 WL 4715200, at *2 (N.D. Cal. Oct.7,
`2011) (citing Columbia Ins. Co. v. seescandy. com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999)). The
`Court will consider each of these factors in turn.
`A.
`Identification of Defendants as Persons Who Can Be Sued
`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. Columbia Ins. Co., 185 F.R.D. at 578. Plaintiff proffers that
`he retained Media Protector International GmbH (“MPI”), which utilized forensic software to
`identify Defendants’ IP addresses on the date and time that they engaged in the alleged distribution
`of Star Wars XXX: A Porn Parody via the BitTorrent protocol, and has compiled the information
`into a log attached as Exhibit A to Plaintiff’s Complaint. Strassmeir Decl. ¶¶ 2, 11-18, Ex. A.
`Plaintiff explains that each time the subscriber accesses the Internet, the ISP provides a unique IP
`address that is somewhat akin to a telephone number, and that ISPs record in user logs the times and
`dates it assigns each IP address to a subscriber. Id. ¶ 20. The IP addresses MPI identified enable it
`to determine which ISP each peer used to gain access to the Internet. Id. ¶ 22. MPI can then search
`public databases to determine which Internet access provider controls a specific IP address. Id.
`Plaintiff can then use this information to obtain Defendants’ names, addresses, e-mail addresses, and
`other identifying information. Id. ¶ 18. 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).
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`B.
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`Previous Steps Taken to Identify the Doe Defendants
`Under the second factor, the Court must assess the prior steps Plaintiff has taken to locate the
`Defendants. 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. Having reviewed Mr. Strassmeir’s testimony, the Court is
`satisfied that Plaintiff has sufficiently described its efforts to identify Defendants. Mr. Strassmeir
`states that once MPI identified a peer distributing Star Wars XXX: A Porn Parody, it obtained and
`recorded publically available information about the peer, including the time and date at which the
`peer distributed the file, the IP address the peer used to access the Internet, and the infohash (a
`unique identifier created for each file by the BitTorrent protocol). Strassmeir Decl. ¶ 15. Mr.
`Strassmeir states that, because of the partially anonymous nature of the P2P Internet distribution
`system used by Defendants, MPI is unable to determine their true names, street addresses, telephone
`numbers, and email addresses. Id. ¶ 18.
`C. Withstanding 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. 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 Star Wars XXX: A
`Porn Parody is the subject of a valid Certificate of Registration issued by the United States
`Copyright Office and that Plaintiff is the co-claimant in the copyrights for the movie. Compl. ¶ 2.
`Plaintiff has also alleged that the Defendants reproduced and distributed Star Wars XXX: A Porn
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`Parody via BitTorrent to numerous third parties. Compl. ¶¶ 33-34. 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 Star Wars XXX: A Porn Parody , loading that torrent file into the BitTorrent client,
`entering a BitTorrent swarm particular to Star Wars XXX: A Porn Parody , and ultimately,
`downloading and uploading pieces of a Star Wars XXX: A Porn Parody file to eventually obtain a
`whole copy of the file. Id. ¶¶ 18-29. Based on these allegations, the Court finds that Plaintiff has
`pled a prima facie case of copyright infringement.
`Plaintiff has also made a prima facie showing that the Complaint would withstand a motion
`to dismiss for lack of personal jurisdiction. The Complaint alleges that the ISP associated with each
`Doe Defendant is located in California; thus, the allegations of the Complaint support an inference
`that all of the Doe Defendants reside in California. Id. ¶ 6. At this stage in the proceedings, this is
`a sufficient showing. Accordingly, Plaintiff has 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 he requests will lead to the identification of Defendants such that it
`may effect service of process. 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. Pl.’s App. at 5; Strassmeir Decl. ¶¶ 19-23. Taking this into account, the Court finds that
`Plaintiff has made a sufficient showing as to this factor.
`E.
`Summary
`Taking the above factors into consideration, the Court finds that Plaintiff has demonstrated
`that good cause exists to grant leave to conduct early discovery. Moreover, the Court finds that the
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`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 Doe Defendants
`Having found that expedited discovery is appropriate, the question becomes whether the
`discovery sought is proper as to all Doe Defendants. 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
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`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.
`Plaintiff asserts that because all of the Doe Defendants were part of the same swarm
`downloading and distributing the same Star Wars XXX: A Porn Parody file during the same period
`of time, the copyright claims arise from the same transaction and occurrence and raise common
`issues of law and fact. While several courts have concluded that joinder is inappropriate under
`similar circumstances, see, e.g., Hard Drive Productions, Inc. v. Does 1–130, 2011 WL 5573960
`(N.D. Cal. Nov.16, 2011), the Court concludes that Plaintiff has at least made a prima facie showing
`that the Doe Defendants are properly joined. See Open Mind Solutions, Inc., 2011 WL 4715200 at
`*7 (concluding that plaintiff made a preliminary showing that satisfied Rule 20 given the allegations
`that the doe defendants were present in the same BitTorrent swarm and shared pieces of the same
`seed file); Braun v. Doe, 2012 WL 3627640, at *3 (N.D. Cal. Aug. 21, 2012). Plaintiff has provided
`enough specificity to make a preliminary determination that the Doe Defendants here were part of
`the same swarm. Reviewing the IP logs attached to Mr. Strassmeir’s Declarations in each of the
`cases, Defendants’ alleged infringing activity occurred over a period ranging from 63 to 193 hours.
`See Strassmeir Decls., Ex. A. Plaintiff states that he tracked Defendant Doe One’s participation in
`the swarm over the entire period of time alleged in each Complaint, limited the present cases to
`individuals who participated in the same swarm at the exact same time, limited defendants to those
`who likely accessed the Internet from within California, and alleged valid claims for contributory
`infringement seeking to hold Defendants jointly and severally liable for the infringing conduct. Pl.’s
`App. at 13.
`Based on these allegations, Plaintiff’s claims against the Doe Defendants appear logically
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`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 Exec.
`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 his 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.”); Third Degree Films, Inc. v. Does 1-178, 2012 WL 3763649, at *5 (N.D. Cal. Aug. 29,
`2012) (same). Plaintiff has made a preliminary showing that these Defendants were present in the
`same Star Wars XXX: A Porn Parody swarm on BitTorrent and shared pieces of the same seed file
`containing Star Wars XXX: A Porn 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 Star Wars XXX: A Porn 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 Star Wars XXX: A Porn 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); Third Degree Films, 2012
`WL 3763649, at *5. 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).” Call of the Wild
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`Movie, 770 F. Supp. 2d at 343.
`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 it 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 separate lawsuits against each
`Doe Defendant, 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.
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`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. As the
`case progresses, the Court may conclude that it is unmanageable, depending on the number of
`defendants served and appearing, or that, in fact, the claims do not arise from the same transaction
`and occurrence. At this time, however, the Court is not persuaded that Plaintiff could not withstand
`a motion to dismiss for improper joinder. The Court therefore declines to sever the Doe Defendants
`at this time.
`
`CONCLUSION
`For the reasons stated above, the Court GRANTS Plaintiff’s Ex Parte Applications for
`Expedited Discovery as follows:
`Plaintiff is allowed to serve immediate discovery on the Doe Defendants’ ISPs listed in
`Exhibit A to Mr. Strassmeir’s Declaration by serving a Rule 45 subpoena that seeks information
`sufficient to identify the Doe Defendants, including the name and address of Defendants. Plaintiff’s
`counsel shall issue the subpoena and attach a copy of this Order. Any subpoena authorized by this
`Order shall be deemed an appropriate court order under 47 U.S.C. § 551.
`Each ISP will have 20 days from the date of service upon it to serve Defendants with a copy
`of the subpoena and a copy of this Order. The ISPs 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.
`Defendants shall have 30 days from the date of service upon him, her, or it to file any
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`motions in this Court contesting the subpoena (including a motion to quash or modify the subpoena).
`If that 30–day period lapses without Defendants contesting the subpoena, the ISP shall have 14 days
`to produce the information responsive to the subpoena to Plaintiff.
`Because no appearance by a person at a deposition is required by the subpoena, instead only
`production of documents, records and the like is required, the witness and mileage fees required by
`Rule 45(b)(1) of the Federal Rules of Civil Procedure do not apply and no such fees need be
`tendered.
`The subpoenaed entity shall preserve all subpoenaed information pending the ISP’s
`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 his rights under the Copyright Act, 17 U.S.C. §§ 101–1322.
`Plaintiff shall serve each Doe Defendant with the summons, complaint, and other documents
`required by Civil Local Rule 4-2 within 120 days of learning that Doe’s identity.
`Should Plaintiff engage in settlement negotiations with any Doe Defendant, he shall not
`assert that that Doe is being sued in San Francisco, unless Plaintiff believes that Doe to be a resident
`of this District or has a good faith belief, consistent with Federal Rule of Civil Procedure 11(b), that
`it can otherwise establish personal jurisdiction over that Doe in this District.
`IT IS SO ORDERED.
`
`Dated: December 6, 2012
`
`_______________________________
`Maria-Elena James
`Chief United States Magistrate Judge
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`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT