-WVG Liberty Media Holdings, LLC v. DOES, No. 3:2010cv01823 - Document 42 (S.D. Cal. 2011)
Court Description: ORDER Granting 41 Fourth Motion Allowing Plaintiff Leave to Take Immediate Discovery. Signed by Magistrate Judge William V. Gallo on 4/6/2011. (All non-registered users served via U.S. Mail Service)(knh) (jrl).
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-WVG Liberty Media Holdings, LLC v. DOES Doc. 42 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LIBERTY MEDIA HOLDINGS, LLC, Case No. 10-1823-DMS(WVG) 12 ORDER GRANTING FOURTH MOTION ALLOWING PLAINTIFF LEAVE TO TAKE IMMEDIATE DISCOVERY Plaintiff, 13 v. 14 (DOC. # 41) 15 16 DOES 1-59, Defendants. 17 I 18 PROCEDURAL BACKGROUND 19 On September 1, 2010, Plaintiff Liberty Media Holdings, LLC 20 (hereafter “Plaintiff”) filed a Complaint against DOES 1-59 (hereafter 21 “Defendants”) for Unlawful Access to Stored Communications, in 22 violation of 18 U.S.C. §§ 2701 and 2707 (The Electronic Stored 23 Communications Privacy Act), violation of 18 U.S.C. § 1030 (The 24 Computer Fraud & Abuse Act) and copyright infringement in violation 25 of 17 U.S.C. § 501 (The Copyright Act). Plaintiff knows the names of 26 some of the Defendants. Pursuant to this Court’s Order of January 25, 27 2011, Plaintiff issued a subpoena and served the January 25, 2011 28 Order on various Internet Protocol (hereafter “IP”) addresses assigned -1- 10cv1823 Dockets.Justia.com 1 to Defendants and the Internet Service Provider (hereafter “ISP”) that 2 provided Defendants with internet access on the dates and times of the 3 allegedly illegal and infringing activities. 4 On April 5, 2011, Plaintiff filed a Fourth Motion for Order 5 Allowing Plaintiff Leave to Take Immediate Discovery (hereafter 6 “Motion”). Specifically, the Motion seeks the Court’s permission to 7 depose and issue written discovery requests to Deven Pedeaux and Kathy 8 Pedeaux, identified as Does Nos. 33, 34 and 35 in this action, and to 9 George Schmidt, identified as Doe No. 8 in this action. 10 II 11 ANALYSIS 12 In accordance with Fed. R. Civ. P. 26(d), discovery does not 13 commence until the parties to an action meet and confer as prescribed 14 by Fed. R. Civ. P. 26(f), unless by court order or agreement of the 15 parties. A court order permitting early discovery may be appropriate 16 “where the need for the discovery, in consideration of the 17 administration of justice, outweighs the prejudice to the responding 18 party.” Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 19 273, 276 (N.D. Cal. 2002). 20 At least one district court in the Ninth Circuit has recognized 21 that “(s)ervice of process can pose a special dilemma for plaintiffs 22 in cases... in which the tortious activity occurred entirely on-line. 23 The dilemma arises because the defendant may have used a fictitious 24 name and address in the commission of the tortious acts.” Columbia 25 Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). In 26 Columbia, the court also stated that in light of the conflict between 27 the need to provide injured parties with a forum in which they may 28 seek redress for grievances, and the right to use the internet -2- 10cv1823 1 anonymously or pseudonymously, a few principles should apply to 2 whether discovery to uncover the identity of a defendant is warranted. 3 4 5 6 7 8 9 10 The court stated: First, the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that (the) defendant is a real person or entity that could be sued in federal court... Second, the (plaintiff) should identify all previous steps taken to locate the elusive defendant... Third, Plaintiff should establish to the Court’s satisfaction that plaintiff’s suit against (the ) defendant could withstand a motion to dismiss... Plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed the act. Id., at 578-580. 11 12 The Court agrees with these principles and finds as follows: 13 A. Identification of Defendants With Sufficient Specificity 14 Plaintiff has provided to the Court the unique IP address 15 assigned to each Defendant, the ISP and/or cable operator that 16 provided each Defendant with internet access, and the names and 17 addresses of those Defendants. Further, the requested discovery is 18 necessary for Plaintiff to determine whether Defendants are the 19 responsible parties for the acts complained of, or whether they can 20 provide information regarding the responsible parties. Therefore, 21 Plaintiff has sufficiently identified each Defendant such that the 22 Court can determine if each Defendant is a person or entity that could 23 be sued in federal court. 24 25 B. Previous Steps Taken to Locate Defendants Plaintiff now has Does Nos. 8, 33, 34, and 35's IP addresses, 26 their ISP, and their names and addresses. Therefore, Plaintiff has 27 specifically identified the Defendants. 28 -3- 10cv1823 1 2 3 C. Whether Plaintiff’s Action Could Withstand a Motion to Dismiss 1. Violation of 18 U.S.C. § 2701 Plaintiff has demonstrated that its claim for violation of 18 4 U.S.C. § 2701 could withstand a motion to dismiss. 18 U.S.C. § 2701 5 states in pertinent part: 6 8 ... (W)hoever (1) intentionally accesses without authorization a facility through which electronic communication service is provided;... (2) and thereby obtains... access to a ... electronic communication while it is in electronic storage... shall be punished... 9 18 U.S.C. § 2701 applies to trespasses in which the trespasser 7 10 gains access to information which he is not entitled to see. 11 Therapeutic Research Faculty v. NBTY, Inc., 488 F. Supp 2d 991 (E.D. 12 Cal. 2007). 13 18 U.S.C. § 2707 states in pertinent part: 14 17 ... Any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity... which engaged in that violation such relief as may be appropriate. 18 Here, Plaintiff’s Complaint alleges that Defendants intentionally 15 16 19 accessed its web servers, which are facilities where electronic 20 communication services are provided, Defendants had no right to access 21 the copyrighted materials on Plaintiff’s website, and Defendants 22 obtained access to these electronic communications while these 23 communications were in electronic storage. Therefore, it appears that 24 Plaintiff has alleged the prima facie elements of a violation of 18 25 U.S.C. § 2701. Accordingly 18 U.S.C. § 2707 authorizes Plaintiff’s 26 action. As a result, the Court finds that Plaintiff’s action in this 27 regard could withstand a motion to dismiss. 28 -4- 10cv1823 1 2 2. Violation of 18 U.S.C. § 1030 Plaintiff has demonstrated that its claim for violation of 18 3 U.S.C. § 1030 could withstand a motion to dismiss. 18 U.S.C. § 1030 4 states in pertinent part: 5 6 (a)(2)(C) Whoever... intentionally accesses a computer without authorization... and thereby obtains – - ... information from any protected computer if the conduct involved an interstate or foreign communication... 7 8 9 10 11 (a)(7)(b) with intent to extort from any... person, any money or thing of value transmits in interstate... commerce... shall be punished as provided in subsection (c) of this section... (g) Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or any other equitable relief. 12 13 Here, Plaintiff’s Complaint alleges that Defendants unlawfully 14 and without authorization entered into its computer server, which was 15 used in interstate commerce, where Plaintiff’s copyrighted materials 16 were contained, stole Plaintiff’s copyrighted materials, valued in 17 excess of $15,000, and as a result of such conduct, caused Plaintiff 18 to suffer damage. Based on these facts, §1030(g) authorizes 19 Plaintiff’s civil action. Therefore, it appears that Plaintiff has 20 alleged the prima facie elements of a violation of 18 U.S.C. § 1030. 21 As a result, the Court finds that Plaintiff’s action in this regard 22 could withstand a motion to dismiss. 23 24 3. Copyright Infringement Plaintiff has demonstrated that its claim 25 infringement could withstand a motion to dismiss. for copyright A plaintiff who 26 claims copyright infringement must allege (1) ownership of a valid 27 copyright, and (2) that the defendant violated the copyright owner’s 28 -5- 10cv1823 1 exclusive rights under the Copyright Act, 17 U.S.C. §501(a).1/ Ellison 2 v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). 3 Here, 4 copyrights Plaintiff for has certain alleged motion that it pictures, is the which owner were of the accessed, 5 reproduced, distributed and publicly displayed by Defendants. Also, 6 Plaintiff alleges 7 intentionally that accessed, Defendants, reproduced and without authorization, distributed Plaintiff’s 8 copyrighted works onto their local hard drives or other storage 9 devices. Therefore, it appears that Plaintiff has alleged the prima 10 facie elements of copyright infringement. As a result, the Court 11 finds that Plaintiff’s action in this regard could withstand a motion 12 to dismiss. 13 III 14 CONCLUSION 15 The Court, having reviewed Plaintiff’s Fourth Motion for Leave 16 To Take Immediate Discovery, the authorities cited therein, as well 17 as other applicable statutes and law, finds that Plaintiff has 18 satisfied the principles discussed in Columbia, supra. Therefore, 19 Plaintiff’s Motion is GRANTED. 20 Accordingly, it is HEREBY ORDERED: 21 1. Plaintiff shall be permitted to depose and issue written 22 discovery requests to Deven Pedeaux and Kathy Pedeaux regarding Does 23 Nos. 33's, 34's, and 35's use of the IP addresses 74.248.126.187, 24 74.248.120.3, and 74.248.119.190 as these persons are either Does 25 Nos. 33, 34 or 35 or are likely to have information pertaining to Does 26 Nos. 33's, 34's and 35's identities. 27 28 1 17 U.S.C. §501(a) states in pertinent part: Anyone who violates any of the exclusive rights of the copyright owner... is an infringer of the copyright of the author... -6- 10cv1823 1 2. Plaintiff shall be permitted to depose and issue written 2 discovery requests to George Schmidt regarding Doe No. 8's use of the 3 IP address 74.167.111.167 as this person is either Doe No. 8 or is 4 likely to have information pertaining to Doe No. 8's identity. 5 3. Plaintiff shall serve a copy of this Order on Deven Pedeaux, 6 Kathy Pedeaux, and George Schmidt. 7 8 DATED: April 6, 2011 9 10 11 12 Hon. William V. Gallo U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- 10cv1823
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