United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Plaintiff Criminal
Productions, Inc.'s (“Criminal Productions”)
Ex Parte Motion for Expedited Discovery. Dkt. # 5.
These motions are substantially identical to those filed in
four similar cases currently pending before the Court.
See, e.g., Case No. 16-729-RAJ, Dkt. # 5; Case No.
16-860-RAJ, Dkt. # 5; Case No. 16-1016-RAJ, Dkt. # 5, Case
No. 16-1177-RAJ, Dkt. # 5. The Court granted those motions
and will do the same here.
case involves alleged copyright infringement over the
BitTorrent protocol.Plaintiff is the holder of a copyright for
the motion picture Criminal, Registration No. PA
1-984-029. See Compl. ¶ 6, Ex. A. Based on its
investigation, Plaintiff has concluded that various IP
addresses (each associated with a Doe defendant) have engaged
in peer-to-peer sharing of Criminal over BitTorrent.
See Id. ¶¶ 10-12. As a result, Plaintiff
brings claims of copyright infringement. See Id.
now requests permission to serve subpoenas on Internet
service providers (“ISPs”) seeking information
sufficient to identify each Doe defendant pursuant to Federal
Rule of Civil Procedure 45. Dkt. # 5 at 7.
Civ. P. 26(d) provides that absent a court order or other
authorization, “[a] party may not seek discovery from
any source before the parties have conferred as required by
Rule 26(f).” This includes non-parties as well as
parties and therefore encompasses subpoenas on non-parties.
See Deuss v. Siso, No. 14-CV-00710-YGR(JSC), 2014 WL
4275715, at *4 (N.D. Cal. Aug. 29, 2014) (quoting
Villegas v. United States, No. 12-0001, 2012 WL
1801735, at *8 (E.D. Wash. May 16, 2012)).
have applied a “good cause” standard in
evaluating requests for early discovery. See Semitool,
Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276
(N.D. Cal. 2002). “Good cause exists ‘where the
need for expedited discovery, in consideration of the
administration of justice, outweighs the prejudice to the
responding party.'” In re Countrywide Fin.
Corp. Derivative Litig., 542 F.Supp.2d 1160, 1179 (C.D.
Cal. 2008) (quoting id.). In the context of
determining whether there is good cause to permit expedited
discovery to identify anonymous internet defendants, courts
have considered whether:
(1) the plaintiff can 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; (2) the plaintiff has identified all previous
steps taken to locate the elusive defendant; (3) the
plaintiff's suit against defendant could withstand a
motion to dismiss; and (4) the plaintiff has demonstrated
that there is a reasonable likelihood of being able to
identify the defendant through discovery such that service of
process would be possible.
Third Degree Films, Inc. v. Does 1-131, 280 F.R.D.
493, 499 (D. Ariz. 2012) (quoting New Sensations, Inc. v.
Does 1-1, 474, No. C11-2770 MEJ, 2011 WL 4407222 at *1
(N.D. Cal. Sept. 22, 2011)); see also Columbia Ins. Co.
v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal.
Court finds that these factors have been met here and that
Plaintiff has shown good cause.
respect to the first and second factors, Plaintiff has
identified the Doe defendants based on their respective IP
addresses. Plaintiff has engaged a German company that
provides forensic investigation services for copyright
owners. See Dkt. # 6 (Arheidt Decl.) ¶ 2. A
consultant for that company states that he used proprietary
software to capture and record the IP addresses of all
BitTorrent users who connected to a swarm sharing the film
Criminal. Id. ¶¶ 10, 14-19. Based on a
visual inspection of the file and a comparison of the
“hash checksum, ” the consultant determined that
the BitTorrent users were copying and distributing pieces of
Criminal. See Id. ¶¶ 15, 17-19.
The consultant then compiled a list of IP addresses along
with the date and time those IP addresses connected to the
swarm and distributed BitTorrent “pieces” to the
monitoring system. See Id. ¶¶ 19-20. These
IP addresses are sufficiently specific to determine that the
Doe defendants are real persons whose names may be known to
their ISP and who can be sued in federal court. See
Cobbler Nevada, LLC v. Does 1-32, No. C15-1432RSM, 2015
WL 5315948, at *3 (W.D. Wash. Sept. 11, 2015).
has also sufficiently pled a prima facie case for
copyright infringement. Plaintiff has alleged that it owns
the registered copyrights at issue (see Compl.
¶¶ 5-6, Ex. A) and that the Doe defendants copied
and distributed the copyrighted work without Plaintiff's
authorization (see Compl. ¶¶ 28-31).
See A&M Records, Inc. v. Napster, Inc., 239 F.3d
1004, 1014 (9th Cir. 2001).
courts at this stage have, however, severed and dismissed all
Doe defendants but the first, finding that these defendants
were not properly joined. See Third Degree Films,
280 F.R.D. at 499. This Court will not take this drastic step
in this particular case. More recently, courts have held that
joinder of multiple Doe defendants may be permissible in
similar BitTorrent cases only if plaintiffs can show that the
defendants participated in the same swarm at or near the same
time. See AF Holdings, LLC v. Does 1-1058,
752 F.3d 990, 998 (D.C. Cir. 2014); In re BitTorrent
Adult Film Copyright Infringement Cases, 296 F.R.D. 80,
91 (E.D.N.Y. 2012); see also Hard Drive Prods., Inc. v.
Does 1-188, 809 F.Supp.2d 1150, 1164 (N.D. Cal. 2011).
This concern is not present in the instant case. The IP
addresses identified in the complaint appear to have
participated in the same swarm roughly within a few days or
hours of each other. See Compl. Ex. B.
Plaintiff notes that ISPs typically retain user activity logs
identifying their subscribers. See Dkt. # 6 (Arheidt
Decl.) ¶ 12. Once provided with the relevant IP address
and the date and time of the allegedly infringing activity,
ISPs can use their subscriber logs to identify the relevant
information necessary to identify the subscriber.
Id. ¶¶ 12-13.
Plaintiff has shown good cause, the Court will
GRANT the motion. Dkt. # 5. The Court
permits Plaintiff to issue subpoenas pursuant to Federal Rule
of Civil Procedure 45 on ISPs seeking information sufficient
to identify each Doe defendant, including his or her name,
telephone number, address, and email address. An ISP served
with a subpoena authorized by this Order shall give written
notice (including email notice) and a copy of the subpoena to
any affected subscriber as soon as possible after service of
the subpoena. The ISP shall provide Plaintiff with the date
when such notice was provided to any affected subscriber. The
ISP and any affected subscriber shall have thirty (30) days
from the date of service of the subpoena on the ISP to object
to the subpoena pursuant to Federal Rule of Civil Procedure
45(d)(2)(B). The ISP shall not disclose Defendants'
identifying information during the 30-day period or if a
timely objection is served unless and until the Court orders
it to do so. If an objection is served, the ISP shall
preserve any material ...