CELL Film Holdings, LLC v. DOE-174.68.74.64, No. 3:2016cv02584 - Document 7 (S.D. Cal. 2016)
Court Description: ORDER Granting 4 Ex Parte Motion to Expedite Discovery. Signed by Magistrate Judge Barbara Lynn Major on 11/3/2016. (knb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 16cv2584-BEN (BLM) CELL FILM HOLDINGS, LLC, ORDER GRANTING EX PARTE MOTION TO EXPEDITE DISCOVERY Plaintiff, 12 13 v. 14 DOE - 174.68.74.64, 15 [ECF No. 4] Defendant. 16 17 Currently before the Court is Plaintiff’s October 17, 2016 “PLAINTIFF’S EX PARTE MOTION 18 TO EXPEDITE DISCOVERY.” ECF No. 4. Because the Defendant has not been identified, no 19 opposition or reply briefs have been filed. Having reviewed Plaintiff’s motion and all supporting 20 documents, the Court GRANTS the motion for the reasons set forth below. 21 BACKGROUND 22 Plaintiff alleges that it “is the registered copyright owner of the motion picture Cell.” ECF 23 No. 4-1 at 1. On October 17, 2016, Plaintiff filed a complaint against Doe 174.68.74.64 alleging 24 direct copyright infringement. ECF No. 1 (“Comp.”). Plaintiff alleges that Defendant has illegally 25 infringed and distributed its copyrighted movie, Cell, over the internet. Id. at 4. Plaintiff further 26 alleges that Defendant, who is “currently known only by their Internet Protocol (“IP”) Address” 27 infringed Plaintiff’s copyright through the BitTorrent software on 50 occasions. Id. at 4-5. 28 Plaintiff describes the BitTorrent network as a “peer-to-peer exchange of a large number of 1 16cv2584-BEN (BLM) 1 copyrighted titles.” Id. at 5. 2 On October 17, 2016, Plaintiff filed the instant motion. ECF No. 4. Plaintiff seeks an 3 order from the Court allowing it to serve a subpoena to Defendant’s Internet Service Provider1 4 (“ISP”) seeking Defendant’s true name and address pursuant to Federal Rule of Civil Procedure 5 45. ECF No. 4-1 at 3. 6 7 DISCUSSION A. The Cable Privacy Act 8 The Cable Privacy Act generally prohibits cable operators from disclosing personally 9 identifiable information regarding subscribers without the prior written or electronic consent of 10 the subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator may disclose such information 11 if the disclosure is made pursuant to a court order and the cable operator provides the subscriber 12 with notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable operator is defined as “any person 13 or group of persons (A) who provides cable service over a cable system and directly or through 14 one or more affiliates owns a significant interest in such cable system, or (B) who otherwise 15 controls or is responsible for, through any arrangement, the management and operation of such 16 a cable system.” 47 U.S.C. § 522(5). Accordingly, Plaintiff seeks an Order instructing Cox 17 Communications to produce documents and information sufficient to identify the user of the 18 specified IP address. 19 B. Early Discovery 20 A party may not seek discovery from any source before the Rule 26(f) conference unless that 21 party first obtains a stipulation or court order permitting early discovery. Fed. R. Civ. P. 26(d)(1). 22 Courts in the Ninth Circuit apply the “good cause” standard in deciding whether to permit early 23 discovery. Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 274 (N.D. Cal. 2002) 24 (adopting the conventional standard of “good cause” in evaluating a request for expedited 25 discovery). Good cause exists “where the need for expedited discovery, in consideration of the 26 administration of justice, outweighs the prejudice to the responding party.” Id. at 276. Good 27 28 1 The ISP at issue is Cox Communications. ECF No. 4-1 at 2. 2 16cv2584-BEN (BLM) 1 cause for expedited discovery has been found in cases involving claims of infringement and 2 unfair competition or in cases where the plaintiff seeks a preliminary injunction. 3 infringement cases, expedited discovery is frequently limited to allowing plaintiffs to identify Doe 4 defendants. See UMG Recordings, Inc. v. Doe, 2008 WL 4104207, at *3 (N.D. Cal. Sept. 4, 5 2008) (granting leave to take expedited discovery for documents that would reveal the identity 6 and contact information for each Doe defendant). Id. In 7 District courts in the Ninth Circuit apply a three-factor test when considering motions for 8 expedited discovery to identify certain defendants. Columbia Ins. Co. v. Seescandy.com, 185 9 F.R.D. 573, 578-80 (N.D. Cal. 1999). First, the plaintiff should “identify the missing party with 10 sufficient specificity such that the Court can determine that the defendant is a real person or 11 entity who could be sued in federal court.” Id. at 578. Second, the plaintiff must describe “all 12 previous steps taken to locate the elusive defendant” to ensure that plaintiff has made a good 13 faith effort to identify the defendant. Id. at 579. Third, plaintiff should establish that its lawsuit 14 could withstand a motion to dismiss. Id. 15 1. Identification of Missing Party with Sufficient Specificity 16 First, Plaintiff must identify the Doe defendant with sufficient specificity to enable the 17 Court to determine that the Doe defendant is a real person subject to the Court’s jurisdiction. 18 See Columbia Ins. Co., 185 F.R.D. at 578. Plaintiff has provided a declaration stating it retained 19 MaverickEye UG, Plaintiff’s investigators, to compile data relating to the IP address at issue. ECF 20 No. 4-3, Declaration of James S. Davis (“Davis Decl.”) at 3. MaverickEye UG determined that 21 the Doe IP address made available an infringing copy of Plaintiff’s motion picture on 50 occasions 22 between September 11, 2016 and September 14, 2016 and that the Doe IP address belonged 23 to Cox Communications and was accessed from a location in San Diego County, CA.2 Id. at 5; 24 Comp., Exh. 2. Mr. Davis also entered the Doe IP address into three websites to determine 25 26 27 28 2 MaverickEye UG uses an investigative tool called MaverikMonitor, which determines the IP address at the specific time of the observed instance of active distribution. Davis Decl. at 3-4 The IP address is then checked against the Maxmind geologcation database (www.maxmind.com). Id. at 4. 3 16cv2584-BEN (BLM) 1 the location of the IP address and the websites’ geolocation trackers confirmed that the Doe IP 2 address traced to San Diego County.3 Davis Decl. at 5. Because Plaintiff has provided the Court 3 with the unique IP address and the dates and times of connection, the name of the ISP and/or 4 cable operator that provided Internet access for the user of the identified IP address, and used 5 geolocation technology, the Court finds that Plaintiff has made a satisfactory showing that Doe 6 174.68.74.64 is a real person or entity behind the alleged infringing conduct who would be 7 subject to suit in federal court. 8 2. Previous Attempts to Locate Defendant 9 Second, Plaintiff must describe all prior attempts it has made to identify the Doe 10 defendant in a good faith effort to locate and serve them. See Columbia Ins. Co., 185 F.R.D. at 11 579. Plaintiff retained an investigator to identify the IP address of BitTorrent users who were 12 allegedly reproducing Plaintiff’s copyrighted material. 13 investigator obtained Defendant’s IP address, “Plaintiff has no means to readily identify the Doe 14 defendant as a named individual.” ECF No. 4-1 at 7. Only Cox Communications can correlate 15 the IP address to a specific individual at a given date and time. See id. The Court therefore 16 finds that Plaintiff has made a good faith effort to identify and locate the Doe defendant. See Davis Decl. Although Plaintiff’s 17 3. Whether Plaintiff Can Withstand a Motion to Dismiss 18 “[A] plaintiff who claims copyright infringement must show: (1) ownership of a valid 19 copyright; and (2) that the defendant violated the copyright owner’s exclusive rights under the 20 Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citations omitted). 21 22 23 24 25 26 27 28 3 “Some district courts in the Ninth Circuit have determined that a plaintiff identifies Doe defendants with sufficient specificity by providing the unique IP address assigned to an individual defendant on the da[te] of the alleged infringing conduct, and by using ‘geolocation technology’ to trace the IP address to a physical point of origin.” See Malibu Media, LLC v. Does 1-19, 2012 WL 2152061, at *3 (S.D. Cal. June 12, 2012) (citing Openmind Solutions, Inc. v. Does 1-39, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t v. Does 1-46, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011)). Others have found that merely identifying the IP addresses assigned to the defendants on the day of the purported infringement is sufficient to satisfy the first factor. Malibu Media, LLC, 2012 WL 2152061, at *3 (citing MCGIP, LLC v. Does 1-149, 2011 WL 3607666, at *2 (N.D. Cal. Aug. 15, 2011)). Here, Plaintiff has done both. See Comp. 4 16cv2584-BEN (BLM) 1 To prove a claim of direct copyright infringement, “a plaintiff must show that he owns the 2 copyright and that the defendant himself violated one or more of the plaintiff’s exclusive rights 3 under the Copyright Act.” Id. (citation omitted). 4 Plaintiff provides evidence that it is the exclusive rights holder of the copyrighted works 5 at issue. See Comp. at 3, Exh. 1 (“Certificate of Registration”). Plaintiff alleges that between 6 September 11, 2016 and September 14, 2016, Defendant infringed Plaintiff’s copyrighted work 7 by using the BitTorrent file distribution network. See Comp. at 5, Exh. 2. Plaintiff further alleges 8 that it did not permit or consent to Defendant’s copying or distribution of this work. See Comp. 9 at 9, ECF No. 4-1 at 8. Accordingly, Plaintiff has alleged the prima facie elements of direct 10 copyright infringement and could withstand a motion to dismiss. See Columbia Ins. Co., 185 11 F.R.D. at 579-80. 12 13 14 15 CONCLUSION Having found good cause, the Court GRANTS Plaintiff’s motion for expedited discovery. For the foregoing reasons, it is hereby ordered that: 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45, on Cox 16 Communications that seeks only the true name and address of Doe 174.68.74.64. Plaintiff may 17 not subpoena additional information; 18 19 20 2. Plaintiff may only use the disclosed information for the purpose of protecting its rights in pursuing this litigation; 3. Within fourteen (14) calendar days after service of the subpoena, Cox 21 Communications shall notify the subscriber that its identity has been subpoenaed by Plaintiff. 22 The subscriber whose identity has been subpoenaed shall have thirty (30) calendar days from 23 the date of such notice to challenge the disclosure by filing an appropriate pleading with this 24 Court contesting the subpoena; 25 4. If Cox Communications wishes to move to quash the subpoena, it shall do so 26 before the return date of the subpoena. The return date of the subpoena must allow for at least 27 forty-five (45) days from service to production. If a motion to quash or other customer challenge 28 is brought, Cox Communications shall preserve the information sought by Plaintiff in the 5 16cv2584-BEN (BLM) 1 2 subpoena pending resolution of such motion or challenge; and 5. Plaintiff shall serve a copy of this Order with any subpoena obtained and served 3 pursuant to this Order to Cox Communications. Cox Communications, in turn, must provide a 4 copy of this Order along with the required notice to the subscriber whose identity is sought 5 pursuant to this Order. 6 IT IS SO ORDERED. 7 8 Dated: 11/3/2016 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 16cv2584-BEN (BLM)
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