Case 3:16-cv-01164-JSC Document 31 Filed 08/12/16 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`DALLAS BUYERS CLUB LLC,
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`Case No. 16-cv-01164-JSC
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`ORDER GRANTING PLAINTIFF’S
`MOTION FOR LEAVE TO ISSUE RULE
`45 SUBPOENA FOR DEPOSITION
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`Re: Dkt. No. 30
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`Plaintiff,
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`v.
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`DOE-69.181.52.57,
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`Defendant.
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`Plaintiff Dallas Buyers Club LLC owns the copyright for the motion picture Dallas Buyers
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`Club. Plaintiff alleges that the Doe Defendant named here using the IP address 69.181.52.57
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`infringed that copyright. Now pending before the Court is Plaintiff’s motion for leave to issue a
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`deposition subpoena, pursuant to Federal Rule of Civil Procedure 45, to Bu Li (“Li”) at 5 Fratessa
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`Court, San Francisco, California 94134. (Dkt. No. 30.1) The Court concludes that oral argument
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`is unnecessary, see Civ. L.R. 7-1(b), and, finding good cause, GRANTS the motion and permits
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`Plaintiff to subpoena and depose Li for the limited purpose of identifying the Doe Defendant.
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`BACKGROUND
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`The Court previously discussed the factual background of this case in its order permitting
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`Plaintiff to subpoena third party Comcast Cable and incorporates that discussion herein. (See Dkt.
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`No. 7.) As a result of the Comcast subpoena, Plaintiff was able to identify the following
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`subscriber as associated with IP address 69.181.52.57: Bu Li, 5 Fratessa Court, San Francisco,
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`California 94134. (Dkt. No. 30-6 ¶ 6.) On May 3 and May 10, 2016, Plaintiff sent two letters to
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`Li, providing Li with data relating to the alleged copyright infringement at IP address
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`1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
`ECF-generated page numbers at the top of the documents.
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`Northern District of California
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`Case 3:16-cv-01164-JSC Document 31 Filed 08/12/16 Page 2 of 5
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`69.181.52.57 and requesting Li’s assistance in identifying the actual infringer. (Id. ¶ 7; Dkt. Nos.
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`30-4, 30-5.) Li responded by mail on May 16, 2016 and subsequently spoke with Plaintiff on the
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`phone on June 8, 2016, indicating that he would help Plaintiff by answering some questions. (Dkt.
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`No. 30-6 ¶¶ 8-9.) Plaintiff thereafter emailed Li with questions on June 9, 2016. (Id. ¶ 10.) On
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`June 10, 2016, Li responded by email stating that he would provide as much information as
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`possible. (Id. ¶ 11.) Plaintiff has since been unable to secure Li’s cooperation (id. ¶ 12) and now
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`moves the Court for permission to serve a deposition subpoena on Li. (Dkt. No. 30.)
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 26(d)(1) requires a court order for discovery if it is
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`requested prior to a Rule 26(f) conference between the parties. Fed. R. Civ. P. 26(d)(1) (“A party
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`may not seek discovery from any source before the parties have conferred as required by Rule
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`26(f), except . . . by court order.”). In fashioning Rule 26(d) discovery orders, the district court
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`wields broad discretion. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003).
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`Courts within the Ninth Circuit apply a “good cause” standard to determine whether to
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`permit such early discovery. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276
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`(N.D. Cal. 2002); see also G.N. Iheaku & Co. v. Does 1-3, No. C-14-02069 LB, 2014 WL
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`2759075, at *2 (N.D. Cal. June 17, 2014) (collecting cases). “Good cause may be found where the
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`need for expedited discovery, in consideration of the administration of justice, outweighs the
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`prejudice of the responding party.” Id.
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`When the identities of defendants are not known before a complaint is filed, a plaintiff
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`“should be given an opportunity through discovery to identify the unknown defendants, unless it is
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`clear that discovery would not uncover the identities, or that the complaint would be dismissed on
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`other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). To determine whether
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`there is “good cause” to permit expedited discovery to identify doe defendants, courts commonly
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`consider whether:
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`(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
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`Case 3:16-cv-01164-JSC Document 31 Filed 08/12/16 Page 3 of 5
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`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.
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`OpenMind Solutions, Inc. v. Does 1-39, No. 11-3311, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7,
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`2011) (citing Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 578-80 (N.D. Cal. 1999)).
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`DISCUSSION
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`Plaintiff has made a sufficient showing under all four factors to establish good cause for
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`additional early discovery in the form of a Rule 45 deposition subpoena to Li.
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`Under the first factor, “the Court must examine whether the Plaintiff has identified the
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`Defendants with sufficient specificity, demonstrating that each Defendant is a real person or entity
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`who would be subjected to jurisdiction in this Court.” Pac. Century Int’l, Ltd. v. Does 1-48, No.
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`11-3823, 2011 WL 4725243, at *2 (N.D. Cal. Oct. 7, 2011). Plaintiff has done so. Specifically,
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`by way of its subpoena to Comcast Cable, Plaintiff has identified the subscriber associated with
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`Comcast IP address 69.181.52.57 as Bu Li, an individual residing in San Francisco, California.
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`(Dkt. No. 30-6 ¶ 6.) San Francisco is in the Northern District of California and thus the Court has
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`jurisdiction over Li (or another individual at Li’s address) and Plaintiff’s federal copyright claim.
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`Under the second factor, the party should identify all previous steps taken to locate the
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`elusive defendant. See Columbia Ins. Co., 185 F.R.D. at 579. “This element is aimed at ensuring
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`that plaintiffs make a good faith effort to comply with the requirements of service of process and
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`specifically identifying defendants.” Id. Here, Plaintiff used information from its pre-suit
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`investigation to subpoena Comcast and has since been able to identify the subscriber associated
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`with Comcast IP address 69.181.52.57 as an individual (Bu Li) at a particular location in San
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`Francisco (5 Fratessa Court). (Dkt. No. 30-6 ¶ 6.) Plaintiff has also engaged in efforts to work
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`with Li to identify the actual infringer. (Id. ¶¶ 7-11.) Li, however, has been unresponsive since
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`June 10, 2016. (Id. ¶ 12.) Absent additional information from Li, Plaintiff cannot identify the
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`Doe Defendant for certain, as other individuals, besides Li, may reside at that location and/or
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`make use of the IP address 69.181.52.57. Plaintiff has thus satisfied the second element.
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`Under the third requirement, a plaintiff must establish to the court’s satisfaction that the
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`complaint can withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff
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`Case 3:16-cv-01164-JSC Document 31 Filed 08/12/16 Page 4 of 5
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`has done so. To establish copyright infringement, a plaintiff must allege facts sufficient to
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`establish two elements: (1) ownership of a valid copyright, and (2) copying of constituent
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`elements of the work that are original. Feist Pub’n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
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`(1991); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007)
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`(defining the two elements as (1) ownership of the infringed material and (2) that alleged
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`infringers violated an exclusive right granted to the copyright holder) (citation omitted); 17 U.S.C.
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`§ 501(a). Plaintiff has made this showing by alleging that it holds a valid copyright for Dallas
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`Buyers Club and that the Doe Defendant distributed the motion picture without its permission.
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`(Dkt. No. 1 ¶¶ 12-13, 15, 21 & Ex. 1.) Moreover, Plaintiff has also shown through its subpoena to
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`Comcast that the Doe Defendant is located at a specific address in San Francisco, which is enough
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`at this juncture to assert personal jurisdiction over the Doe Defendant and to conclude that venue
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`lies in this District. See Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th
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`Cir. 2010) (noting that venue in a copyright infringement action is proper in the district in which
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`the defendant resides or may be found, including any district where the defendant is subject to
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`personal jurisdiction). Thus, Plaintiff has met the third element of good cause for early discovery.
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`The final factor concerns whether the discovery sought will uncover the identity of the Doe
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`Defendant. See Gillespie, 629 F.2d at 642-43 (stating that early discovery to identify doe
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`defendants should be allowed “unless it is clear that discovery would not uncover the identities”).
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`Again, Plaintiff has identified the individual and address associated with the Comcast IP address at
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`issue. With this information, and based on prior experience, Plaintiff argues that the likely
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`infringer will be either the subscriber himself or someone known to the subscriber that he can
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`identify. (See Dkt. No. 30-1 at 15-16.) Plaintiff has demonstrated that a limited deposition of Li
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`should reveal the identity of the Doe Defendant.
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`Ultimately, granting Plaintiff additional early discovery to identify the Doe Defendant
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`appears to be the only way to advance this litigation. See UMG Recordings, Inc. v. Doe, No.
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`C 08-1193 SBA, 2008 WL 4104214, at *4 (N.D. Cal. Sept. 3, 2008) (citation omitted). Moreover,
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`there is no prejudice to the Doe Defendant in granting the requested early discovery because it “is
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`narrowly tailored to seek only their identity.” Id. (citations omitted). Plaintiff has therefore met
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`Case 3:16-cv-01164-JSC Document 31 Filed 08/12/16 Page 5 of 5
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`its burden of establishing good cause for early discovery.
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`CONCLUSION
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`For the reasons stated above, the Court GRANTS Plaintiff’s motion for leave to issue a
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`Rule 45 deposition subpoena to Li for the limited purpose of identifying the Doe Defendant in this
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`case. As done previously (see Dkt. No. 9), Plaintiff shall file a proposed subpoena and a proposed
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`order regarding notice of the subpoena by August 17, 2016. The proposed order shall include the
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`following notice to Li regarding the availability of free legal assistance to pro se litigants:
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`In responding to this subpoena, if you do not have an attorney, you
`are encouraged to seek free legal assistance from the Northern
`District’s Pro Se Help Desk, United States Courthouse, San
`Francisco, 450 Golden Gate Avenue, 15th Floor, Room 2796, San
`Francisco, CA 94102, or the Help Desk at the Oakland Federal
`Courthouse, 1301 Clay Street, 4th Floor, Room 470S, Oakland, CA
`94612. Appointments can be made in person or by calling 415-782-
`8982.
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`Once the Court approves the subpoena and order, Plaintiff may serve both documents on Li.
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`This Order disposes of Docket No. 30.
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`IT IS SO ORDERED.
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`Dated: August 12, 2016
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`JACQUELINE SCOTT CORLEY
`United States Magistrate Judge
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