A Plaintiff in a BitTorrent filing sharing copyright case sought early discovery to identify 96 Doe Defendants. The Plaintiff moved to subpoena the Doe Defendants’ internet service providers (“ISPs”) to identify each person associated with the IP address. AF Holdings LLC v. Doe, 2011 U.S. Dist. LEXIS 109816, 2-3 (N.D. Cal. Sept. 27, 2011).
The Plaintiff specifically requested leave to subpoena the ISP’s to disclose the “name, address, telephone number, and email address for each Defendant’s IP address.” AF Holdings LLC, at *3.
Good cause is required for a court to allow early discovery prior to a Rule 26(f) meet and confer. AF Holdings LLC, at *3, citing Semitool, Inc. v. Tokyo Electron American, Inc., 208 F.R.D. 273, 275 (N.D. Cal. 2002). Moreover, good cause may be found “where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Id.
A key test is whether the early discovery is “very likely” to identify doe defendants. AF Holdings LLC, at *4-5.
The Court denied motion for early discovery, holding that the early discovery was not likely to identify the Doe Defendants. AF Holdings LLC, at *4-5.
Citing an earlier case with the same Plaintiff and attorney, the Court noted a prior court allowed early discovery on ISP addresses, only to have the Plaintiff return to Court stating additional discovery was needed, including “an inspection of the subscriber’s electronically stored information and tangible things, including each of the subscriber’s computer and the computers of those sharing his internet network.” AF Holdings LLC, at *6.
As was conceded in the prior case:
[The ISP discovery] does not tell Plaintiff who illegally downloaded Plaintiff’s works, or, therefore, who Plaintiff will name as the Defendant in this case. It could be the Subscriber, or another member of his household, of any number of other individuals who had direct access to Subscribers network.
AF Holdings LLC, at *6.
The Plaintiff stated they would need the following discovery in the prior case:
Inspection of the identified subscriber’s computer;
[Inspection] all of those computers that subscriber has reasonable control over/access to, for the limited purpose of discovering who accessed the BitTorrent protocol.
AF Holdings LLC, at *6-7.
This protocol might take two, perhaps three, subpoenas in all to identify a Doe Defendant. AF Holdings LLC, at *7.
The Court denied without prejudice the early discovery in the current case, since the facts were nearly identical to the prior case, and that the ISP discovery would not identify the Doe Defendants. AF Holdings LLC, at *7-8.
Bow Tie Thoughts
The idea of early discovery to identify a defendant by an IP addresses, only to result in searches of any computer on a wireless network, should give everyone pause. While copyright plaintiffs have a right to identify those who download files unlawfully, there obviously must be checks on early discovery that engulfs innocent non-parties who could have been on the same network.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.