Case 5:16-cv-00858-PSG Document 13 Filed 03/23/16 Page 1 of 7
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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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`Plaintiff,
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`v.
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`DOE-73.202.228.252,
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`Case No. 16-cv-00858-PSG
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`ORDER GRANTING EX PARTE
`MOTION FOR LEAVE TO TAKE
`LIMITED DISCOVERY
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`(Re: Docket No. 4)
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`Defendant.
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`Plaintiff Dallas Buyers Club LLC, which owns the copyright for the movie of a similar
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`name, alleges that an unnamed Defendant has infringed that copyright by copying and distributing
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`the film without authorization.1 Ordinarily, Fed. R. Civ. P. 26(d)(1) precludes discovery before
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`the conference required under the Fed. R. Civ. P. 26(f). “[I]n rare cases, courts have made
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`exceptions, permitting limited discovery to ensue after the filing of the complaint to permit the
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`plaintiff to learn the identifying facts necessary to permit service on the defendant.”2
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`Arguing that this is one of those rare cases, DBC moves ex parte for leave to take early
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`discovery.3 In particular, DBC seeks to serve a subpoena on Defendant’s Internet Service
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`Provider, Comcast Cable, to ascertain Defendant’s identity in order to serve him or her in
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`accordance with Rule 4. For the reasons set forth below, the motion is GRANTED.
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`1 See Docket No. 1 at ¶¶ 4-23, 35-41.
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`2 Columbia Ins. Co. v. SeesCandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999).
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`3 See Docket No. 4.
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`Case No. 16-cv-00858-PSG
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`Case 5:16-cv-00858-PSG Document 13 Filed 03/23/16 Page 2 of 7
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`I.
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`DBC is the registered copyright holder for the motion picture Dallas Buyers Club.4
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`According to DBC’s complaint, Defendant, using the IP address 73.202.228.252, distributed
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`hundreds of copies of the film through the BitTorrent peer-to-peer file sharing protocol.5 Over the
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`course of a month, other BitTorrent users made over 300 connections to a computer located at
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`Defendant’s IP address to download the same copy of Dallas Buyers Club.6 Through geolocation
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`technology, DBC has traced each of those connections to this district.7 DBC also has observed
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`Defendant exchange a number of other copyrighted works over BitTorrent, so it infers that
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`Defendant is an authorized user of the computer located at that IP address.8 At the time of the
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`infringement, Comcast managed the IP address at issue.9 Since Comcast generally assigns IP
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`addresses to the same user for long periods of time, DBC believes that Comcast’s records can help
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`DBC identify the subscriber, who in turn can likely name Defendant.10
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`DBC filed this complaint on February 20, 2016, alleging a single count of copyright
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`infringement under the Copyright Act against a Doe defendant, identified only by his or her IP
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`address.11 While IP addresses provide a form of identification, “[t]raditionally, the default
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`4 See Docket No. 1 at ¶¶ 4, 6. The work is registered under Registration Number PA 1-873-195.
`See id. at ¶ 6.
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`5 See id. at ¶¶ 12, 14-15, 17. BitTorrent is called a “peer-to-peer” network because, instead of
`relying on a central server to distribute data directly to individual users, the BitTorrent protocol
`allows individual users to distribute data among themselves by exchanging pieces of the file with
`each other to eventually obtain a whole copy of the file. When using the BitTorrent protocol,
`every user simultaneously receives information from and transfers information to others. See
`generally Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1024-28 (9th Cir. 2013).
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`6 See Docket No. 1 at ¶¶ 12-13, 15; Docket No. 1-1.
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`7 See Docket No. 1 at ¶ 14.
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`8 See id. at ¶¶ 17-20.
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`9 See id. at ¶ 21.
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`10 See id. at ¶¶ 21-22.
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`11 See id. at ¶¶ 35-41.
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`Case 5:16-cv-00858-PSG Document 13 Filed 03/23/16 Page 3 of 7
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`requirement in federal court is that the plaintiff must be able to identify the defendant sufficiently
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`that a summons can be served on the defendant. This requires that the plaintiff be able to ascertain
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`the defendant’s name and address.”12 Accordingly, DBC filed the instant motion two days later.13
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`The requested subpoena will be limited to the name and address of the individual or individuals
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`associated with Defendant’s IP address.14
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`II.
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`This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. DBC has
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`consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and
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`Fed. R. Civ. P. 72(a).15
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`III.
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`In the Ninth Circuit, exceptions to the general rule against expedited discovery are
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`disfavored.16 In general, courts in this district have required a plaintiff to show “good cause”
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`before permitting early discovery.17 But a district court always has jurisdiction to determine facts
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`12 Columbia Ins. Co., 185 F.R.D. at 577 (citing Fed. R. Civ. P. 4).
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`13 See Docket No. 4.
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`14 See Docket No. 4-1 at 2.
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`15 See Docket Nos. 28, 31. Because Defendant has not yet been served, he or she is not yet a party
`under Section 636, and Defendant’s consent is not required. See Travelers Cas. & Sur. Co. of Am.
`v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th
`Cir. 1986)); Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995); Third World Media, LLC v. Does
`1-1568, Case No. 10-cv-04470, 2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011) (citing
`Ornelas v. De Frantz, Case No. 00-cv-01067, 2000 WL 973684, at *2 n.2 (N.D. Cal. June 29,
`2000)).
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`16 See Wakefield v. Thompson, 177 F.3d 1160, 1162 (9th Cir. 1999) (citing Gillespie v. Civiletti,
`629 F.2d 637, 642 (9th Cir. 1980)); see also Gomez v. Serv. Employees Int’l Local 87, Case No.
`10-cv-01888, 2010 WL 4704407, at *3 (N.D. Cal. Nov. 12, 2010).
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`17 E.g., Apple Inc. v. Samsung Elecs. Co., Ltd., Case No. 11-cv-01846, 2011 WL 1938154, at *1
`(N.D. Cal. May 18, 2011); IO Grp., Inc. v. Does 1-65, Case No. 10-cv-04377, 2010 WL 4055667,
`at *2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 280 F.R.D. 273, 275-
`77 (N.D. Cal. 2002).
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`Case 5:16-cv-00858-PSG Document 13 Filed 03/23/16 Page 4 of 7
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`relevant to whether or not it has personal jurisdiction.18 As a result, “where the identity of alleged
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`defendants will not be known prior to the filing of a complaint . . . the plaintiff should be given an
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`opportunity through discovery to identify the unknown defendants, unless it is clear” that one of
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`two conditions applies.19 The first is where discovery would not uncover the identities sought.20
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`The second is where the claim against the defendant could be dismissed on other grounds.21 These
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`conditions are imposed because “[p]eople who have committed no wrong should be able to
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`participate online without fear that someone who wishes to harass or embarrass them can file a
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`frivolous lawsuit and thereby gain the power of the court’s order to discover their identity.”22
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`In light of this guidance from the Ninth Circuit, this district has examined four factors in
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`deciding whether a plaintiff has established good cause for discovery to ascertain a Doe
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`defendant’s identity.23 First, the plaintiff must identify the missing party with enough specificity
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`that the court can decide whether the defendant is a real person or entity who can be sued in a
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`federal court.24 Second, the plaintiff must name all previous steps it has taken to locate the
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`18 See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977).
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`19 Gillespie, 629 F.2d at 642; see also Columbia Ins. Co., 185 F.R.D. at 573 (“With the rise of the
`Internet has come the ability to commit certain tortious acts, such as defamation, copyright
`infringement, and trademark infringement, entirely on-line. The tortfeasor can act
`pseudonymously or anonymously and may give fictitious or incomplete identifying information.
`Parties who have been injured by these acts are likely to find themselves chasing the tortfeasor
`from [ISP] to ISP, with little or no hope of actually discovering the identity of the tortfeasor. In
`such cases the traditional reluctance for permitting filings against John Doe defendants or
`fictitious names and the traditional enforcement of strict compliance with service requirements
`should be tempered by the need to provide injured parties with an forum in which they may seek
`redress for grievances.”).
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`20 See Gillespie, 629 F.2d at 642.
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`21 See id.
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`22 Columbia Ins. Co., 185 F.R.D. at 578.
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`23 See id. at 578-80.
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`24 See id. at 578.
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`Case 5:16-cv-00858-PSG Document 13 Filed 03/23/16 Page 5 of 7
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`defendant to assure the court that the plaintiff has made a good-faith effort to identify the elusive
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`defendant without court intervention.25 Third, the plaintiff must satisfy the court that the suit
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`could withstand a motion to dismiss.26 Fourth, the plaintiff must state the reasons justifying the
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`specific discovery requested and identify a limited number of persons or entities that will be
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`affected by that discovery, including those on whom discovery process might be served and those
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`whose identifying information the discovery is reasonably likely to uncover.27
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`DBC has satisfied each of these elements. The IP address is specific enough to identify a
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`single Defendant and to confirm that the court has jurisdiction over the Defendant because he or
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`she is located in this district.28 DBC also has listed each step it has taken to track down Defendant
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`and explained why the data it has gathered is insufficient to identify Defendant.29 Next, DBC has
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`shown that its complaint is likely to withstand a motion to dismiss. “Plaintiffs must satisfy two
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`requirements to present a prima facie case of direct infringement: (1) they must show ownership of
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`the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at
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`least one exclusive right granted to copyright holders under 17 U.S.C. § 106.”30 DBC has alleged
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`that it owns the copyright to Dallas Buyers Club, and it has alleged that Defendant distributed the
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`25 See id. at 579.
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`26 See id.
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`27 See id. at 580.
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`28 See 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash
`E37917C8EEB4585E6421358FF32F29CD63C23C91, Case No. 12-cv-00186, 2012 WL
`1648838, at *4 (S.D. Cal. May 4, 2012) (“[A] plaintiff identifies Doe defendants with sufficient
`specificity by providing the unique IP addresses assigned to an individual defendant on the day of
`the allegedly infringing conduct, and by using ‘geolocation technology’ to trace the IP addresses
`to a physical point of origin.”).
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`29 See Docket No. 1 at ¶¶ 12-22.
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`30 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007) (quoting A&M
`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see 17 U.S.C. § 501(a).
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`Case 5:16-cv-00858-PSG Document 13 Filed 03/23/16 Page 6 of 7
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`film without DBC’s permission.31 Furthermore, DBC’s proof that Defendant resides in this
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`district32 is enough—for now—to meet personal jurisdiction and venue requirements. Lastly,
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`DBC seeks only limited discovery on one party, Comcast. DBC also has alleged that Comcast
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`assigns IP addresses to single parties for extended periods,33 which shows that the requested
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`discovery is reasonably likely to lead to identifying information that will allow DBC to serve
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`process on Defendant. While other courts have rightly noted that the relationship between accused
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`activity linked to an IP address and subscriber information associated with that IP address is
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`imperfect at best,34 this imperfection does not make it “clear,” as our Circuit requires,35 that the
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`discovery sought would fail in uncovering the identity of individuals responsible for that activity.
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`DBC motion therefore is GRANTED as follows.
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`IT IS HEREBY ORDERED that DBC shall file a proposed subpoena and a proposed
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`order, consistent with Civ. L.R. 7-2(c), by March 30, 2016. The proposed order should specify
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`that DBC will serve a copy of this order along with this subpoena. Once the court approves the
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`subpoena, DBC may serve it on Comcast Cable.
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`IT IS FURTHER ORDERED that Comcast Cable shall not assess any charge to DBC in
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`advance of providing the information requested in the subpoena. If Comcast Cable receives a
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`subpoena and elects to charge for the costs of production, it shall provide a billing summary and
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`cost reports that serve as a basis for such billing summary and any costs claimed.
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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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`31 See Docket No. 1 at ¶¶ 4-10, 12-15, 35.
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`32 See id. at ¶ 14.
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`33 See id. at ¶¶ 21-22.
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`34 See VPR Internationale v. Does 1-1017, Case No. 2:11-cv-02068, 2011 WL 8179128, at *1-2
`(C.D. Ill. Apr. 29, 2011).
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`35 Gillespie, 629 F.2d at 642.
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`Case No. 16-cv-00858-PSG
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`Case 5:16-cv-00858-PSG Document 13 Filed 03/23/16 Page 7 of 7
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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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`Act, 17 U.S.C. §§ 101 et seq.
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`SO ORDERED.
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`Dated: March 23, 2016
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`_________________________________
`PAUL S. GREWAL
`United States Magistrate Judge
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`Case No. 16-cv-00858-PSG
`ORDER GRANTING EX PARTE MOTION FOR LEAVE TO TAKE LIMITED DISCOVERY
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