reFX AUDIO SOFTWARE INC. v. Does 1-123
Filing
10
ORDER. ORDERED that Plaintiff's "Motion and Memorandum for Leave to Take Discovery Prior to Rule 26(f) Conference" 2 is GRANTED in part by Magistrate Judge Kathleen M. Tafoya on 03/11/13.(jjhsl, )
<![CDATA[
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–03146–WYD–KMT
reFX AUDIO SOFTWARE INC.,
Plaintiff,
v.
DOES 1-123,
Defendants.
ORDER
This matter is before the court on Plaintiff’s “Motion and Memorandum for Leave to
Take Discovery Prior to Rule 26(f) Conference.” (Doc. No. 2, filed Dec. 3, 2013.) In its
Complaint, Plaintiff alleges that Defendants Does 1–123 (hereinafter “Defendants”) used
BitTorrent technology, which allows “peer-to-peer file sharing,” to infringe upon Plaintiff’s
copyrighted material, namely a ROM synthesizer-plugin software program referred to as Nexus
2.2.0. (See Doc. No. 1, filed Dec. 3, 2012 [Compl.].) In its Motion, Plaintiff seeks a court order
authorizing it to conduct limited discovery before the parties have conferred pursuant to Fed. R.
Civ. P. 26(f) in order to discovery Defendants’ identities.
First, as a general rule, the use of “John Doe” or other fictitious names to identify a
defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (internal
citation omitted). However, circumstances arise “where the identity of alleged defendants will
not be known prior to the filing of a complaint.” Id. (internal citations omitted). In such
circumstances, the plaintiff should be given an opportunity through discovery to identify the
unknown defendants, unless it is clear that discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds. Id. (internal citations omitted); see also
Tracfone Wireless, Inc., 642 F. Supp. 2d 1354, 1361 (S.D. Fla. 2009).
Plaintiff believes that without this information, it cannot serve Defendants or pursue this
lawsuit. As such, Plaintiff proposes to serve subpoenas pursuant to Fed. R. Civ. P. 45 on
Defendants’ Internet Service Providers (“ISPs”), who Plaintiff maintains can use the Defendants’
Internet Protocol (“IP”) addresses to identify Defendants, as well as any related intermediary
ISPs.
Federal Rule of Civil Procedure 26(d) generally provides that formal discovery will not
commence until after the parties have conferred as required by Rule 26(f). Qwest Commc’ns
Int’l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003). However, Rule
26(d) goes on to explain that discovery may be conducted prior to a Rule 26(f) conference “when
authorized by . . . court order.” Fed. R. Civ. P. 26(d); Arista Records, LLC v. John Does 1-19,
551 F. Supp. 2d 1, 6 (D.D.C. 2008). In this district, courts have permitted such expedited
discovery upon a showing of good cause. Pod-Ners v. Northern Feed & Bean of Lucerne Ltd.,
204 F.R.D. 675, 676 (D. Colo. 2002) (citing Yokohama Tire Corp. v. Dealers Tire Supply, Inc.,
202 F.R.D. 612, 614 (D. Ariz. 2001)) (finding good cause exists for expedited discovery in cases
involving infringement and unfair competition).
2
After review of the motion, the Court finds that Plaintiff establishes good cause for
limited expedited discovery. Indeed, this case is similar to Arista Records, where the court
permitted expedited discovery to identify defendant allegedly engaged in copyright infringement
by downloading and distributing the plaintiffs’ recording using an “online media distribution
system.” 551 F. Supp. 2d at 3. There the court found that the plaintiffs had set forth good cause
for expedited discovery because the “[d]efendants must be identified before this suit can
progress further.” Id. at 6.
Much like the Arista Records defendants, Defendants here have engaged in anonymous
online behavior, which will likely remain anonymous unless Plaintiff is able to ascertain their
identities. Thus, Plaintiff reasonably believes that there are no practical methods to discover
Defendants’ identities without court-ordered discovery. Accordingly, because it appears likely
that Plaintiff will be thwarted in its attempts to identify Defendants without the benefit of formal
discovery mechanisms, the court finds that Plaintiff should be permitted to conduct expedited
discovery, pursuant to Fed. R. Civ. P. 45, for the limited purpose of discovery the identities of
Defendants.
Therefore, it is
ORDERED that Plaintiff’s “Motion and Memorandum for Leave to Take Discovery
Prior to Rule 26(f) Conference” (Doc. No. 2) is GRANTED in part. Plaintiff may serve thirdparty subpoenas pursuant to Fed. R. Civ. P. 45 on the identified ISPs for the limited purpose of
ascertaining the John Doe Defendants’ identities, as set forth herein. It is further
ORDERED that
3
1.
The subpoenas are limited to providing Plaintiff with the true name, address, email
address, and Media Access Control (“MAC”) address of the Doe Defendants to whom
the ISP(s) assigned an IP address. The subpoenas are limited to the information relating
to the IP addresses set forth in Exhibit A to Plaintiff’s Original Complaint (Doc. No. 1-4).
Plaintiff shall serve a copy of this order with the issued subpoenas;
2.
Any ISP that qualifies as a “cable operator” as defined by 47 U.S.C. § 522(5) shall
comply with 57 U.S.C. § 551(c)(2)(B) by serving a copy of the subpoena and this order
on the subscriber no later than 14 days after service of the subpoena on the ISP. The ISP
may serve the relevant Doe Defendant using any reasonable means, including written
notice to his last known address, transmitted by either first-class mail or overnight
service;
3.
The Doe Defendants shall have 21 days from the date of service of this order and the
subpoena from their ISP to file motion(s) contesting the subpoena. No ISP may turn over
the Defendants’ identifying information before this 30-day period expires. If a Doe
Defendant files a motion to quash, or other similar motion, their ISP shall not turn over
any information to Plaintiff until the appropriate court rules in favor of Plaintiff on the
merits of the motion. In addition, a Doe Defendant or ISP who files such a motion must
immediately notify all ISPs so that the ISPs are on notice not to release any of that Doe
Defendants’ contact information to Plaintiff until the appropriate court rules on such
motions;
4
4.
If the 21-day objection period lapses without the appropriate Doe Defendant contesting
the subpoena, or if a court rules in favor of Plaintiff on any motion(s) contesting the
relevant subpoena, the ISP shall have 10 days to produce the information responsive to
the subpoena to Plaintiff;
5.
The subpoenaed ISP shall preserve any subpoenaed information pending the resolution of
any timely-filed motion contesting the subpoena(s);
6.
Nothing set forth herein abrogates the protections afforded to the Doe Defendants or the
ISPs under Fed. R. Civ. P. 45(c); and
7.
Plaintiff may only use the information disclosed in response to a Rule 45 subpoena
served on an ISP for the purpose of protecting and enforcing Plaintiff’s rights as set forth
in its Complaint (Doc. No. 1). The court cautions Plaintiff that improper use of this
information may result in sanctions.
Dated this 11th day of March, 2013.
5
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
