United States District Court, D. Nevada
ORDER [DOCKET NO. 4]
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
alleges infringement of its copyrights to various
pornographic material through the BitTorrent protocol.
See Docket No. 1. Pending before the Court is
Plaintiff's ex parte motion for leave to obtain
discovery from an Internet Service Provider
(“ISP”) to ascertain Defendant's identity.
Docket No. 4. Plaintiff submits that it is suing Defendant
for using the Internet to commit direct copyright
infringement and, since the alleged infringement occurred
over the Internet, Plaintiff knows the Defendant only by his
or her Internet Protocol (“IP”) address.
Id. at 2. Plaintiff therefore seeks an order
allowing it to subpoena Defendant's ISP for his or her
true name and address. Id. at 3.
Ninth Circuit has held that, where the identity of the
defendant is unknown prior to the filing of a complaint, the
plaintiff should be given an opportunity through discovery to
identify the unknown defendant, unless it is clear that
discovery would not uncover the identity of the defendant, or
that the complaint would be dismissed on other grounds.
See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th
Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d
637, 642 (9th Cir. 1980)).
requirements are satisfied in this case and, for good
cause shown, Plaintiff's ex parte motion for
discovery is GRANTED as follows:
• Plaintiff may serve a Rule 45 subpoena upon the
identified ISP, along with a copy of this order.
• The subpoena will demand only the true name and
physical address for the account holder to whom the relevant
IP address was assigned at the date(s) and time(s) that the
alleged infringement activity occurred.
• To the extent the ISP qualifies as a “cable
operator, ” the provisions of 47 U.S.C. §
551(c)(2)(B) must be satisfied, including providing notice of
• Plaintiff will use the information it obtains from the
ISP in response to this subpoena solely to prosecute the
• Once Plaintiff learns the identity of the
subscriber(s), Plaintiff shall provide a copy of this Order
to that person or those persons when Plaintiff first makes
contact with the subscriber regarding this case. At that same
time, Plaintiff shall also provide the subscriber(s) a copy
of the Ninth Circuit's opinion in Cobbler Nevada, LLC
v. Gonzales, 901 F.3d 1142 (9th Cir. 2018). Once both
have been provided to the subscriber(s), counsel for
Plaintiff shall immediately file a declaration that confirms
these have been provided to the subscriber.
• If neither a motion to quash the subpoena nor a motion
to dismiss the complaint has been filed by that date,
Plaintiff shall file a status report by October 23,
 Pleading a defendant's
“status as the registered subscriber of an infringing
IP address, standing alone, does not create a reasonable
inference that he is also the infringer. Because multiple
devices and individuals may be able to connect via an IP
address, simply identifying the IP subscriber solves only
part of the puzzle. A plaintiff must allege something more to
create a reasonable inference that a subscriber is also an
infringer.” Cobbler Nevada, LLC v. Gonzales,
901 F.3d 1142, 1144 (9th Cir. 2018). It is not clear whether
Plaintiff will be able to meet this pleading standard. It is
also not clear that the instant discovery (limited to the
name and physical address of the registrant of the IP
address) will meaningfully advance Plaintiff's ability to
meet this pleading standard. Nonetheless, the Court is aware
of no case law preventing the discovery of a doe
defendant's identity based on the copyright holder's
current inability to meet the Cobbler pleading
standard. Absent further guidance to the contrary, the Court