United States District Court, D. Nevada
FOLEY, JR. United States Magistrate Judge.
matter is before the Court on Plaintiffs Ex Parte Motion for
Leave to Take Limited Discovery Prior to Rule 26(f)
Conference (ECF No. 3), filed on March 6, 2017. Because no
Defendants have been named or served, no opposition or reply
briefs have been filed.
March 6, 2017, Plaintiff ME2 Productions, Inc. (Plaintiff)
filed a complaint against John and Jane Does (Defendants).
Plaintiff asserts that it is the registered owner of the
copyright for the motion picture entitled “Mechanic:
Resurrection” with copyright registration number PA
1-998-057, 2016-08-02. Complaint (ECF No. 1), pg. 3,
¶ 11. Plaintiff alleges a claim of copyright
infringement, stating that Defendants reproduced and
distributed Plaintiffs copyrighted work through the use of
BitTorrent, a peer-to-peer file sharing system. Id.
at pgs. 8-9, ¶¶ 45-52. Plaintiff also
asserts a claim for contributory infringement, alleging that
through the use of BitTorrent, all Defendants illegally
obtained the copyrighted work and assisted others in doing
the same. Id. at pgs. 9-10, ¶¶
53-63. Finally, Plaintiff asserts a claim for vicarious
copyright infringement, arguing that Defendants failed to
reasonably supervise the use of their respective Internet
access points, which allowed others to unlawfully download
and share Plaintiffs work. Id. at pgs. 11-12,
same day, Plaintiff filed the instant Motion requesting leave
to take early discovery to ascertain the identities of the
Doe Defendants from their Internet Service Providers
(“ISPs”) through their Internet Protocol
(“IP”) address. To obtain the IP addresses of the
Defendants using BitTorrent, Plaintiff hired forensic
investigator, Maverickeye UG. See Motion (ECF No.
3), Decl. of Daniel Arheidt (“Arheidt
Decl.”), Ex. 1. Since Plaintiff can only identify
Defendants via their IP addresses, it seeks leave to serve
Rule 45 subpoenas on the ISPs and any related intermediary
ISPs demanding the true name, address, telephone number,
e-mail address and Media Access Control (“MAC”)
address of the Defendant to whom the ISP issued an Internet
Protocol (“IP”) address. Motion (ECF No.
3), pg. 2, lns. 17-20. Plaintiff asserts that it will only
use this information to prosecute the claims made in its
Complaint. Id. at lns. 21-22.
claims that good cause exists to grant its request because it
has identified the Defendants with sufficient specificity, it
has properly pled copyright infringement, there is no other
way to obtain the Defendants' true identities, and there
is a risk that the ISP will destroy its logs prior to the
Rule 26(f) conference. Id. at pgs. 1, 5-8.
Cable Privacy Act
Cable Privacy Act generally prohibits cable operators from
disclosing personally identifiable information regarding
subscribers without the prior written or electronic consent
of the subscriber. 47 U.S.C. § 551(c)(1). A cable
operator, however, may disclose such information if the
disclosure is made pursuant to a court order and the cable
operator provides the subscriber with notice of the order. 47
U.S.C. § 551(c)(2)(B). A cable operator is defined as
“any person or group of persons (A) who provides cable
service over a cable system and directly or through one or
more affiliates owns a significant interest in such cable
system, or (B) who otherwise controls or is responsible for,
through any arrangement, the management and operation of such
a cable system.” 47 U.S.C. § 522(5). The ISPs that
Plaintiff intends to subpoena in this case are cable
operators within the meaning of the Act.
Discovery Requests Prior to the Rule 26(f) Conference
discovery is not permitted without a court order before the
parties have held a conference pursuant to Federal Rule of
Civil Procedure 26(f). Fed.R.Civ.P. 26(d)(1).
“[H]owever, in rare cases, courts have made exceptions,
permitting limited discovery to ensue after filing of the
complaint to permit the plaintiff to learn the identifying
facts necessary to permit service on the defendant.”
Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573,
577 (N.D.Cal.1999) (citing Gillespie v. Civiletti,
629 F.2d 637, 642 (9th Cir.1980)). “The Ninth Circuit
has held that when the defendants' identities are unknown
at the time the complaint is filed, courts may grant
plaintiffs leave to take early discovery to determine the
defendants' identities ‘unless it is clear that
discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds.' ”
808 Holdings, LLC v. Collective of December 29, 2011
Sharing Hash, 2012 U.S. Dist. LEXIS 62980, *7 (S.D.Cal.
May 4, 2012) (quoting Gillespie, 629 F.2d at 642).
“A district court's decision to grant discovery to
determine jurisdictional facts is a matter of
discretion.” Columbia Ins., 185 F.R.D. at 578
(citing Wells Fargo & Co. v. Wells Fargo Express
Co., 556 F.2d 406, 430 n. 24 (9th Cir.1977)). To
determine whether to grant a request for early discovery, the
court shall apply the conventional “good cause”
standard that weighs the need for discovery to further
justice against the prejudice to the opposing party.
Semitool, Inc. v. Tokyo Electron Am., Inc., 208
F.R.D. 273, 275-76 (N.D.Cal.2002).
in this district apply a three-factor test when considering
motions for early discovery to locate certain defendants.
Columbia Ins., 185 F.R.D. at 578-80. First,
“the plaintiff should 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.” Id. at 578. Second, the
plaintiff “should identify all previous steps taken to
locate the elusive defendant” to ensure that the
plaintiff has made a good faith effort to identify and serve
process on the defendant. Id. at 579. Third, the
“plaintiff should establish to the Court's
satisfaction that plaintiff's suit against defendant
could withstand a motion to dismiss.” Id.
(citing Gillespie, 629 F.2d at 642). “[T]o
prevent abuse of this extraordinary application of the
discovery process and to ensure that the plaintiff has
standing to pursue an action against defendant, ”
plaintiff must show that some act giving rise to liability
actually occurred and that the discovery is aimed at
identifying the person who allegedly committed the act.
Id. at 579-80 (citing Plant v. Various John
Does, 19 F.Supp.2d 1316, 1321 n. 2 (S.D.Fla.1998)).
District Courts within the Ninth Circuit have found good
cause supporting a request for early or expedited discovery
in copyright infringement cases where the plaintiff alleges
that its copyrighted work has been infringed upon through a
peer-to-peer file sharing system, and sought early discovery
to obtain the identities and addresses of the alleged
infringers through their respective ISPs. See, e.g., UMG
Recordings, Inc. v. Doe, 2008 WL 4104214 (N.D. Cal.
2008) (granting leave to ...