Case 1:12-cv-03534-PAE Document 5 Filed 07/30/12 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`NEW SENSATIONS, INC.,
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`PAUL A. ENGELMAYER, District Judge:
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`-v-
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`JOHN DOES 1-32,
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`12 Civ. 3534 (PAE)
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`OPINION & ORDER
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`Plaintiff,
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`Defendants.
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`Plaintiff New Sensations, Inc. filed an ex parte motion seeking permission to take
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`discovery, before a Rule 26(f) conference, from third-party Internet Service Providers (“ISPs”) to
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`identify the names, addresses, email addresses, and Media Access Control (“MAC”) addresses
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`associated with identified Internet Protocol (“IP”) addresses that New Sensations alleges were
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`used to illegally share a file containing its copyrighted motion picture in violation of 17 U.S.C. §
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`101 et seq. For the reasons that follow, the motion to serve Rule 45 subpoenas on third-party
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`ISPs is granted, pursuant to a protective order.
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`I.
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`BACKGROUND1
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`New Sensations is a California corporation that produced a motion picture entitled
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`“Seinfeld #2: A XXX Parody” (the “movie”). The movie is copyrighted and is available for
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`1 The facts which form the basis of this Opinion are taken from the Complaint, with exhibits, and
`the Declaration of Jon Nicolini in support of the motion for expedited discovery, with exhibits.
`Unless otherwise noted, no further citation to sources will be made. For the purposes of this
`Opinion only, the Court takes all facts as pleaded in the Complaint, and in the motion for
`expedited discovery, as true.
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`1
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`Case 1:12-cv-03534-PAE Document 5 Filed 07/30/12 Page 2 of 7
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`purchase. John Does 1-32 (“Does 1-32” or the “Doe defendants”) are 32 unknown individuals
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`associated with the 32 IP addresses named in the Complaint.
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`New Sensations’s Complaint arises from the illegal distribution of copies of the movie
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`through peer-to-peer file-sharing networks. Peer-to-peer file-sharing networks facilitate the
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`sharing of very large files among individual computer users. In this instance, one copy of the
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`movie (distinguishable from other copies by a unique piece of forensic data known as a “hash”)
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`was shared by and downloaded by multiple Internet users in what is referred to as a “swarm.” A
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`swarm is a group of Internet users who come together to download and then, in turn, distribute
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`by sharing with others, a file.
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`New Sensations did not consent to the distribution of unlawful copies of the movie, a
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`copyrighted work, by way of swarms. The subject of this lawsuit is an unlawful copy of the
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`movie that was shared by a swarm believed by New Sensations—and confirmed by reverse-IP
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`looks-ups—to consist of Internet users in and around New York City, in New York State,2
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`during the months of January, February, and March 2012. New Sensations does not know the
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`actual identity of the individuals who participated in the swarm; the primary identification
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`information they have are these individuals’ IP addresses. ISPs assign IP addresses to
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`subscribers, and, generally, keep records that correlate a subscriber’s true identity (e.g., name,
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`address, and email address) to that subscriber’s IP address.
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`2 In the Complaint, New Sensations alleges that personal jurisdiction in New York State and
`venue in the Southern District are proper because, after undertaking efforts to geographically
`pinpoint Does 1-32, it believes they are all located in New York State, in and around New York
`City, and because “each Defendant contracted with an [ISP] found in this District.” New
`Sensations incorporates into its Complaint a listing of the believed state of residence of Does 1-
`32, and each is believed, based on research, to reside in New York. For the limited purposes of
`this Opinion only, those research-based allegations as to the propriety of jurisdiction and venue
`suffice. See Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 n.3 (S.D.N.Y. 2012) (“Digital
`Sin I”).
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`2
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`Case 1:12-cv-03534-PAE Document 5 Filed 07/30/12 Page 3 of 7
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`On May 3, 2012, New Sensations filed its Complaint in this action (Dkt. 1). On May 8,
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`2012, it filed this motion to take discovery before a Rule 26(f) conference (Dkt. 2). New
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`Sensations seeks to obtain from the third-party ISPs, by way of a Rule 45 subpoena, the names,
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`addresses, email addresses, and MAC addresses associated with the IP addresses that participated
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`in the swarm.
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`II.
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`DISCUSSION
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`A.
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`Joinder of Does 1-32
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`Under Federal Rule of Civil Procedure 20(a)(2), persons “may be joined in one action as
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`defendants if . . . any right to relief is asserted against them . . . with respect to or arising out of
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`the same transaction, occurrence, or series of transactions or occurrences” and “any question of
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`law or fact common to all defendants will arise in the action.” “Under the Federal Rules of Civil
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`Procedure, ‘the impulse is toward entertaining the broadest possible scope of action consistent
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`with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.’”
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`Digital Sin I, 279 F.R.D. at 243 (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
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`724 (1966)). Here, New Sensations argues that Does 1-32 have been properly joined, because
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`they traded, through cooperative uploading and downloading, the same file of the movie in a
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`swarm.
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`In recent months, courts in this district and around the country have considered the
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`proprietary of joinder in similar copyright cases, all naming multiple John Doe defendants.
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`Some courts that have considered this issue have found joinder improper, whereas others have
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`found for joinder in case similarly postured to this one. See, e.g., Digital Sin I, 279 F.R.D. at 243
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`nn.4-5 (collecting cases). This Court is persuaded by the standard articulated by the Hon. Paul
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`A. Crotty, in DigiProtect USA Corp v. Does 1-240, No. 10-cv-8790, 2011 WL 4444666
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`3
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`Case 1:12-cv-03534-PAE Document 5 Filed 07/30/12 Page 4 of 7
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`(S.D.N.Y. Sept. 26, 2011) and the Hon. Alison J. Nathan, in Digital Sin, Inc.: At this initial
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`stage, joinder is proper if plaintiff specifically alleges defendants’ connection to the same swarm.
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`See Digital Sin I, 279 F.R.D. at 244; DigiProtect USA Corp., 2011 WL 4444666, at *3 n.3.
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`Here, New Sensations makes such concrete allegations, based on research which indicates these
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`transactions involved one file, marked by the same hash, traded among geographically
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`centralized individuals over a three-month period. Accordingly, joinder of the Doe defendants
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`is, at this stage of the case, appropriate.
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`B.
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`Pre-Conference Discovery
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`Generally, Federal Rule of Civil Procedure 26 calls for the parties to meet and confer
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`prior to commencing discovery, but provides for earlier discovery pursuant to a court order. See
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`Fed. R. Civ. P. 26(d), (f). Courts in this district “have applied a ‘flexible standard of
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`reasonableness and good cause’ to determine whether expedited discovery is appropriate.”
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`Digital Sin Inc. v. Does 1-27, No. 12-cv-3873, 2012 WL 2036035, at *3 (S.D.N.Y. June 6, 2012)
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`(“Digital Sin II”) (quoting Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326-27 (S.D.N.Y. 2005)).
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`This Court follows the recent precedents set by other courts in this district in nearly identical
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`circumstances in finding that such good cause exists here for granting New Sensations’s motion
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`for expedited discovery. See, e.g., Digital Sin II, 2012 WL 2036035, at *4; Digital Sin I, 279
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`F.R.D. at 241. As in those cases, plaintiff has no reasonable means other than through the ISPs
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`by which to identify the individuals allegedly involved in the swarm, and the ISPs, in turn, are
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`statutorily prohibited from providing this information to New Sensations absent a court order.
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`See 47 U.S.C. § 551(c); Digital Sin I, 279 F.R.D. at 241. Accordingly, New Sensations may
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`conduct expedited pre-conference discovery, pursuant to a protective order, as discussed below.
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`C.
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`Protective Order
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`Pursuant to Federal Rule of Civil Procedure 26(c), a “court may, for good cause, issue an
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`order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
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`or expense.” As other district courts encountering similar cases have noted, the high risk of
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`“false positives” in the identification process (e.g., one person’s name and other identifying
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`information is associated with the ISP account, but the copyrighted material was downloaded and
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`uploaded by a different individual), combined with the sensitive nature of the copyrighted
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`material at issue, may lead to a certain amount of undue annoyance and embarrassment for an
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`non-culpable party. See, e.g., Digital Sin II, 2012 WL 2036035, at *4. Accordingly, the Court
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`finds good cause for the issuance of a protective order, as outlined below.
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`Case 1:12-cv-03534-PAE Document 5 Filed 07/30/12 Page 6 of 7
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`CONCLUSION
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`For the reasons given above, it is hereby ORDERED that:
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`(1) New Sensations may immediately serve a Rule 45 subpoena on the ISPs listed in Exhibit A to
`the Complaint to obtain the names, addresses, email addresses, and MAC addresses of Does 1-
`32. The subpoena shall have a copy of this Order attached;
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`(2) The ISPs shall have 30 days from the date of service of the Rule 45 subpoena and this Order
`upon them to serve Does 1-32 with a copy of the subpoena and a copy of this Order. The ISPs
`may serve Does 1-32 using any reasonable means, including written notice to a last known
`address, transmitted either by first-class mail or via overnight service;
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`(3) Does 1-32 shall have 30 days from the date of service of the Rule 45 subpoena and this Order
`upon her or him to file any motions with this Court contesting the subpoena, as well as any
`requests to litigate the subpoena anonymously. The ISPs may not turn over the Doe defendants’
`information to New Sensations prior to the close of this 30-day period. Additionally, if a
`defendant or an ISP files a motion to quash the subpoena, the ISPs may not turn over any
`information to New Sensations until the issues have been addressed and the Court issues an
`Order instructing the ISPs to resume in turning over the requested discovery;
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`(4) If that 30-day period closes without a Doe defendant or an ISP contesting the subpoena, the
`ISPs shall then have 10 days to produce the information responsive to the subpoena to New
`Sensations. A Doe defendant or ISP who moves to quash or modify the subpoena, or to proceed
`anonymously, shall, at the same time as her or his filing, also notify all ISPs so that the ISPs are
`on notice not to release any of the Doe defendants’ information to New Sensations until the
`Court rules on any such motions;
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`(5) The ISPs shall preserve any subpoenaed information pending the resolution of any timely-
`filed motion to quash;
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`(6) An ISP that receives a subpoena pursuant to this order shall confer with New Sensations and
`shall not assess any charge in advance of providing the information requested in the subpoena.
`An ISP that receives a subpoena and elects to charge for the costs of production shall provide a
`billing summary and cost report to New Sensations;
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`and
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`(7) Any information ultimately disclosed to New Sensations in response to a Rule 45 subpoena
`may be used by New Sensations solely for the purpose of protecting its rights as set forth in its
`Complaint.
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`Case 1:12-cv-03534-PAE Document 5 Filed 07/30/12 Page 7 of 7
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`SO ORDERED.
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`Dated: July 30, 2012
`New York, New York
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`pa::!n!:n.~
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`United States District Judge
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