Case 3:16-cv-02939-JCS Document 11 Filed 06/16/16 Page 1 of 6
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 16-cv-02939-JCS
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`ORDER GRANTING PLAINTIFF’S EX
`PARTE MOTION FOR EXPEDITED
`DISCOVERY
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`Re: Dkt. No. 6
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`DALLAS BUYERS CLUB, LLC,
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`Plaintiff,
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`v.
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`DOE-73.92.201.24,
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`Defendant.
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`I.
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`INTRODUCTION
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`Plaintiff Dallas Buyers Club, LLC (“DBC”) alleges that the unnamed Defendant (“Doe”)
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`has infringed its copyright for the motion picture Dallas Buyers Club. DBC has been unable to
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`determine Doe’s identity, but has ascertained Doe’s IP address (73.92.201.24) and Internet Service
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`Provider (Comcast Cable). Now pending before the Court is DBC’s ex parte Motion for
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`Expedited Discovery (“Motion”). DBC requests an order permitting it to subpoena third party
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`Comcast Cable for records that will reveal the identity of the subscriber associated with Doe’s IP
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`address. The Court finds that the Motion is suitable for determination without oral argument.
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`See Civil L.R. 7-1(b). Good cause shown, the Motion is GRANTED.
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`II.
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`BACKGROUND
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`A. The Complaint
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`DBC filed the instant Complaint against Doe on June 1, 2016, alleging copyright
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`infringement under the Copyright Act. Compl. ¶¶ 35–41. DBC also filed Exhibit 1 in which DBC
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`lists the date, time, and location of the alleged acts of infringement. Dkt. 1-1. Exhibit 1 also lists
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`the IP address and Internet Service Provider used in the alleged acts. In the Complaint, DBC
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`alleges as follows.
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`DBC is the registered copyright holder for the motion picture Dallas Buyers Club (“the
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`United States District Court
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`Case 3:16-cv-02939-JCS Document 11 Filed 06/16/16 Page 2 of 6
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`film”). Compl. ¶¶ 4, 6. The film 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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`From April 11, 2016, to May 18, 2016, Doe distributed a distinct copy of the film in at
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`least 190 instances. Id. ¶¶ 12, 15–16; see also id. Ex. 1 (listing the distributions). Doe distributed
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`the film, as well as many other copyrighted works, through BitTorrent’s peer-to-peer file sharing
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`network. Compl. ¶¶ 12, 16–17, 30. Doe’s BitTorrent activity is consistent with a singular,
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`identifiable adult who was authorized to use the IP address from which the distributions were
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`made. Id. ¶¶ 17–22.
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`Presently, DBC only knows Doe by the IP address from which the distributions were made
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`(73.92.201.24, “Doe’s IP address”). Id. ¶ 12. Using geolocation technology, DBC traced the
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`distributions from Doe’s IP address to the Northern District of California. Id. ¶¶ 14–15, 21. DBC
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`determined that Comcast Cable was the Internet Service Provider for Doe’s IP address when the
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`distributions occurred. Id. ¶ 21. Comcast Cable generally assigns a subscriber one IP address for
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`extended time periods and maintains records of its IP address assignments. Id. ¶ 21–22. Because
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`the Comcast Cable subscriber assigned Doe’s IP address is either Doe or a person who authorized
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`Doe’s Internet access, DBC would likely be able to identify Doe upon discovering Comcast
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`Cable’s records. Id. ¶ 22–23.
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`B. The Motion
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`On June 2, 2016, DBC filed the pending Motion, requesting that the Court permit DBC to
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`subpoena Comcast Cable under Federal Rule of Civil Procedure 45. With the Motion, DBC filed
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`the Declaration of James S. Davis, DBC’s counsel. Dkt. 6-3. Davis declared that he compiled the
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`list of distributions in Exhibit 1 from data provided by DBC’s investigators, MaverickEye UG.
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`Davis Decl. ¶¶ 5–6. He also declared that, using three geolocation websites,1 he traced Doe’s IP
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`address to Alameda County and confirmed Comcast Cable as the Internet Service Provider.
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`Id. ¶¶ 8–9. Pursuant to his findings, Davis asserts that Comcast Cable is able to identify the
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`subscriber assigned Doe’s IP address, who is either Doe or someone who can identify Doe.
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`1 Davis used the IP address locator websites www.iplocation.net, www.ipfingerprints.com, and
`www.ip-address.org.
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`Case 3:16-cv-02939-JCS Document 11 Filed 06/16/16 Page 3 of 6
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`Id. ¶ 11.
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`III. ANALYSIS
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`A. Legal Standard
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`In the Ninth Circuit, a district court may permit a plaintiff to seek expedited discovery
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`when good cause is shown. Fed. R. Civ. P. 26(d)(1); see also Semitool, Inc. v. Tokyo Electron
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`Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002); G.N. Iheaku & Co. Ltd. v. Does 1-3, No.
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`C 14-02069 LB, 2014 WL 2759075, at *2 (N.D. Cal. June 17, 2014) (collecting authority). “Good
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`cause may be found where the need for expedited discovery, in consideration of the administration
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`of justice, outweighs the prejudice to the responding party.” Semitool, Inc., 208 F.R.D. at 275.
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`“[G]ood cause is frequently found in cases involving claims of infringement . . . .” Id. District
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`courts have broad discretion to fashion expedited discovery orders. See Laub v. U.S. Dep’t of
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`Interior, 342 F.3d 1080, 1093 (9th Cir. 2003); Columbia Ins. Co. v. seescandy.com, 185 F.R.D.
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`573, 578 (N.D. Cal. 1999) (“A district court’s decision to grant discovery to determine
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`jurisdictional facts is a matter of discretion”).
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`When the identity of a defendant is not known before a complaint is filed, the plaintiff
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`“should be given an opportunity through discovery to identify the unknown defendant[], unless it
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`is clear that discovery would not uncover the identit[y], or that the complaint would be dismissed
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`on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). To determine
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`whether there is good cause permitting expedited discovery to identify unnamed defendants,
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`courts in this district consider whether:
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`(1) the plaintiff can identify the missing party with sufficient
`specificity such that the Court can determine that [the] 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 MEJ, 2011 WL 4715200, at *2 (N.D. Cal.
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`Oct. 7, 2011) (citing Columbia Ins. Co., 185 F.R.D. at 578-80).
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`Case 3:16-cv-02939-JCS Document 11 Filed 06/16/16 Page 4 of 6
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`B. Discussion
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`Applying the test set forth in Openmind Solutions, the Court finds that DBC has
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`demonstrated that there is good cause for expedited discovery as to Doe’s identity.
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`First, DBC has demonstrated that it can identify Doe with sufficient specificity such that
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`the Court can determine that Doe is a real person or entity who would be subject to the Court’s
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`jurisdiction. See OpenMind Solutions, Inc., 2011 WL 4715200, at *2. DBC alleges that Doe is
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`likely a singular, identifiable adult who is either the subscriber assigned to Doe’s IP address or
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`someone who is known to the subscriber. Compl. ¶¶ 17, 19–20; see also Davis Decl. ¶ 11. DBC
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`bases this allegation on the consistency of Doe’s activity as well as the number and titles of
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`copyrightable works that Doe has distributed through BitTorrent. Compl. ¶¶ 17, 19–20; see also
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`id. Ex. 1 (list of distributions). DBC has also used geolocation technology to trace Doe’s IP
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`address to the Northern District of California, specifically Alameda County, thus giving the Court
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`jurisdiction over Doe and the present copyright action. Compl. ¶ 14; Davis Decl. ¶ 9. Thus, DBC
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`has satisfied this factor.
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`Second, DBC has identified all steps taken to locate Doe, a factor “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.” Columbia Ins. Co., 185 F.R.D. at 579. Specifically, DBC
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`has alleged that it determined Doe’s Internet Service Provider to be Comcast Cable, traced the IP
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`address to this district, and identified BitTorrent as the software used to distribute the film.
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`Id. ¶¶ 14–16 & Ex. 1 (list of distributions); see also Davis Decl. ¶¶ 6–10. Therefore, the Court
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`concludes that DBC has made a good faith effort to identify Doe and that it will be unable to do so
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`unless the Court grants the requested relief.
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`Third, the allegations in DBC’s Complaint appear to be sufficient to withstand a motion to
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`dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. To establish copyright infringement, a
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`plaintiff must allege facts sufficient to establish that it owns a valid copyright and the defendant
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`copied constituent elements of the copyrighted work that are original. Feist Pub'n, Inc. v. Rural
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`Tel. Serv. Co., 499 U.S. 340, 361 (1991); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d
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`1146, 1159 (9th Cir. 2007) (defining the two elements as (1) ownership of the infringed material
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`Case 3:16-cv-02939-JCS Document 11 Filed 06/16/16 Page 5 of 6
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`and (2) that the alleged infringer violated an exclusive right granted to the copyright holder);
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`17 U.S.C. § 501(a). DBC alleges that it holds a valid copyright for the film and Doe distributed
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`copies of the film without its permission through the BitTorrent peer-to-peer network. Compl. ¶¶
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`8–9, 12-13, 15, 21. DBC has therefore satisfied the third factor.
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`Finally, the Court finds that there is a reasonable likelihood that the requested discovery
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`will lead to information identifying Doe. See Columbia Ins. Co., 185 F.R.D. at 580; Gillespie, 629
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`F.2d at 642-43 (stating that expedited discovery to identify unnamed defendants should be allowed
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`“unless it is clear that discovery would not uncover the identities”). DBC alleges that Comcast
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`Cable generally assigns an IP address to a single subscriber for extended time periods and
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`maintains records that identify its subscribers. Compl. ¶ 21. DBC further alleges that these
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`records will either identify Doe or the subscriber who authorized Doe’s Internet access. Id. ¶¶ 21–
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`22; see also Davis Decl. ¶ 11. In sum, DBC has demonstrated that obtaining Comcast Cable’s
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`records regarding Doe’s IP address will likely reveal Doe’s identity.
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`Granting expedited discovery to permit DBC to identify Doe appears to be the only way to
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`advance this litigation. See UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA, 2008 WL
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`4104214, at *4 (N.D. Cal. Sept. 3, 2008). Moreover, granting DBC’s request for expedited
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`discovery does not prejudice Doe because it is narrowly tailored to seek only Doe’s identity. See
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`id. DBC has therefore met its burden of establishing good cause.
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`IV. CONCLUSION
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`For the foregoing reasons, DBC’s Motion is GRANTED as follows.
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`IT IS HEREBY ORDERED that DBC shall file a proposed subpoena by June 28, 2016.
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`The subpoena shall order Comcast Cable to produce only the names and addresses for the
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`subscribers assigned IP address 73.92.201.24 from April 11, 2016, to May 18, 2016 (“the
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`subscribers”). The subpoena shall give Comcast Cable at least 45 days to produce the names and
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`addresses of the subscribers. Once the Court approves the subpoena, DBC may serve it. DBC
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`shall serve a copy of this Order with the subpoena.
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`IT IS FURTHER ORDERED that, upon receiving the subpoena and Order, Comcast Cable
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`shall have 14 days to provide the subscribers with the following: (1) notice that it received a
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`Case 3:16-cv-02939-JCS Document 11 Filed 06/16/16 Page 6 of 6
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`subpoena from Dallas Buyers Club, LLC ordering it to produce their names and addresses; (2)
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`notice that the subscribers have 30 days to seek a protective order from the Court or file
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`responsive pleadings; and (3) a copy of this Order. Comcast Cable shall also have 30 days to seek
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`a protective order from the Court.
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`IT IS FURTHER ORDERED that Comcast Cable shall preserve all subpoenaed
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`information pending its delivering such information to DBC or the final resolution of a timely
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`filed and granted Motion to Quash the subpoena with respect to such information.
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`IT IS FURTHER ORDERED that any information disclosed to DBC in response to a
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`subpoena may be used by DBC solely for the purpose of protecting its rights under the Copyright
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`______________________________________
`JOSEPH C. SPERO
`Chief Magistrate Judge
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`Act, 17 U.S.C. §§ 101 et seq.
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`IT IS SO ORDERED.
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`Dated:
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