Case 3:16-cv-01164-JSC Document 7 Filed 03/11/16 Page 1 of 6
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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 EX
`PARTE MOTION TO TAKE EARLY
`DISCOVERY
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`Re: Dkt. No. 5
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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 (“Plaintiff”) owns the copyright for the motion picture
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`Dallas Buyers Club. Plaintiff alleges that the Doe Defendant named here, using the IP address
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`69.181.52.57, infringed that copyright. Now pending before the Court is Plaintiff’s ex parte
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`motion to expedite discovery. (Dkt. No. 5.)1 Specifically, Plaintiff has not been able to identify
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`the individual associated with the IP address and seeks an order allowing it to subpoena third party
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`Comcast Cable, the Doe Defendant’s internet service provider, to learn the Doe Defendant’s
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`identity. The Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and,
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`finding good cause, GRANTS the motion.
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`BACKGROUND
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`Plaintiff owns the registered copyright for the motion picture Dallas Buyers Club. (Dkt.
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`No. 1 ¶¶ 4, 6.) Dallas Buyers Club contains wholly original material that is copyrightable subject
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`matter currently offered for sale in commerce. (Id. ¶¶ 8-9.)
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`The Doe Defendant, who uses Comcast Cable IP address 69.181.52.57, allegedly
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`distributed, without Plaintiff’s permission, a distinct copy of Dallas Buyers Club on 76 separate
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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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`United States District Court
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`Case 3:16-cv-01164-JSC Document 7 Filed 03/11/16 Page 2 of 6
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`occasions between January 29, 2016 and March 7, 2016. (Id. ¶¶ 12-13, 15, 21 & Ex. 1.) The Doe
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`Defendant used the software µTorrent 3.4.5 on a peer-to-peer sharing network to distribute the
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`motion picture. (Id. ¶¶ 16, 27, 30.) Through well-accepted geolocation technology, Plaintiff has
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`traced each distribution associated with the Doe Defendant’s IP address to the Northern District of
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`California. (Id. ¶ 14.)
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`Plaintiff has observed the Doe Defendant use the peer-to-peer network to exchange a large
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`number of other copyrighted works. (Id. ¶ 17.) Plaintiff alleges that the consistency, volume, and
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`titles of this observed activity indicates that the Doe Defendant is an identifiable and singular adult
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`who likely is the primary subscriber to the IP address or is known to the subscriber, because the
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`activity suggests that the Doe Defendant is an authorized user of the IP address with consistent
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`and permissive access to it. (id. ¶¶ 18-20.)
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`Plaintiff alleges on information and belief that Comcast Cable generally assigns an IP
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`address to a single party for extended periods of time. (Id. ¶ 21.) It further alleges that Comcast
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`Cable maintains records sufficient to identify the Doe Defendant or the subscriber who contracted
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`with Comcast Cable and is likely to have knowledge that will help Plaintiff identify the Doe
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`Defendant. (Id. ¶ 22.)
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`Plaintiff filed the instant complaint against the Doe Defendant on March 9, 2016, alleging
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`a single count of copyright infringement under the Copyright Act. (Id. at 8-9.) On March 10,
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`2016, Plaintiff filed an ex parte motion asking the court to issue an order allowing it to serve
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`Comcast Cable with a subpoena under Federal Rule of Civil Procedure 45. (Dkt. No. 5.) The
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`requested subpoena will be limited to the name and address of the individual or individuals
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`associated with the IP address that the Doe Defendant uses, which Plaintiff needs to identify the
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`Doe Defendant. (See id.)
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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. See Fed. R. Civ. P. 26(d)(1) (“A
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`party may not seek discovery from any source before the parties have conferred as required by
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`Rule 26(f), except . . . by court order.”). In fashioning Rule 26(d) discovery orders, the district
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`Case 3:16-cv-01164-JSC Document 7 Filed 03/11/16 Page 3 of 6
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`court wields broad discretion. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir.
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`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
`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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`expedited discovery.
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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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`Case 3:16-cv-01164-JSC Document 7 Filed 03/11/16 Page 4 of 6
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`Plaintiff alleges that the Doe Defendant has distributed Dallas Buyers Club and a variety of other
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`copyrighted works, and that the constituency of the activity, and the number and titles of the
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`copyrightable works, suggests that the Doe Defendant is an identifiable and singular adult likely to
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`be the primary subscriber of the IP addresses or someone who resides with or is known to the
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`subscriber. (Dkt. No. 1 ¶¶ 17, 19-20.) Plaintiff has also used geolocation technology to trace the
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`Doe Defendant’s peer-to-peer sharing of the copyrighted works using the IP address to the
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`Northern District of California, thus giving the Court jurisdiction over him and Plaintiff’s federal
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`copyright claim. (Id. ¶ 14.)
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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. Columbia Ins. Co., 185 F.R.D. at 579. “This element is aimed at ensuring that
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`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 has determined the Doe Defendant’s
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`Internet Service Provider (Comcast Cable), traced his or her IP address to a particular location
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`(San Francisco), and identified the software that the Doe Defendant used to distribute Dallas
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`Buyers Club (µTorrent 3.4.5). (Id.¶¶ 14-16 & Ex. 1.) The IP address alone is not sufficient for
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`Plaintiff to identify the Doe Defendant, and Plaintiff has no other means to identify the Doe
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`Defendant besides Comcast Cable’s record. (See Dkt. No. 5-1 at 5.) Plaintiff has therefore
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`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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`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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`Case 3:16-cv-01164-JSC Document 7 Filed 03/11/16 Page 5 of 6
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`(Dkt. No. 1 ¶¶ 12-13, 15, 21 & Ex. 1.) Moreover, Plaintiff has also alleged based on its
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`investigation and use of geolocation technology, that the Doe Defendant is located in San
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`Francisco (Dkt. No. 1 Ex. 1), which is enough at this juncture to assert personal jurisdiction over
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`the Doe Defendant and to conclude that venue lies in this District. See Brayton Purcell LLP v.
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`Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010) (noting that venue in a copyright
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`infringement action is proper in the district in which the defendant resides or may be found,
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`including any district where the defendant is subject to personal jurisdiction). Thus, Plaintiff has
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`met the third element of good cause for expedited 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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`Plaintiff alleges on information and belief that Comcast Cable generally assigns an IP address to a
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`single party for extended periods of time and maintains records that identify each individual to
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`whom an IP address is assigned. (Id. ¶ 21.) Plaintiff further alleges that these records will either
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`identify the Doe Defendant or the subscriber who knows the Doe Defendant. (Id. ¶¶ 21-22.)
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`Plaintiff has thus demonstrated that a subpoena on Comcast Cable should reveal the identity of the
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`Doe Defendant.
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`Ultimately, granting early discovery to permit Plaintiff 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. C
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`08-1193 SBA, 2008 WL 4104215, 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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`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 early discovery.
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`(Dkt. No. 5.) Plaintiff shall file a proposed subpoena and proposed order consistent with Civil
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`Local Rule 7-2(c) by March 25, 2016. Once the Court approves the subpoena, Plaintiff may serve
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`it on Comcast Cable.
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`Case 3:16-cv-01164-JSC Document 7 Filed 03/11/16 Page 6 of 6
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`This Order disposes of Docket No. 5.
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`IT IS SO ORDERED.
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`Dated: March 11, 2016
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`JACQUELINE SCOTT CORLEY
`United States Magistrate Judge
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