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ME2 Productions Inc. v. Does

United States District Court, D. Nevada

March 24, 2017



          GEORGE FOLEY, JR. United States Magistrate Judge.

         This 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.


         On 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, ¶¶ 64-69.

         That 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.

         Plaintiff 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.


         I. The Cable Privacy Act

         The 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.

         II. Discovery Requests Prior to the Rule 26(f) Conference

         Generally, 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., 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).

         Courts 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)).

         Typically, 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 ...

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