The Plaintiffs filed a suit alleging copyright infringement against the online proprietors of Korean pop music website where the Defendants “post, organize, search for, identify, collect and index links to infringing material that is available on third-party websites,” which the Plaintiff claimed was a “a one-stop shop for infringing material.” DFSB Kollective Co. v. Jenpoo, 2011 U.S. Dist. LEXIS 62163, *1-2 (N.D. Cal. June 10, 2011).
The Plaintiffs sought early discovery on eight third-party service providers and “other necessary entities that may be uncovered during discovery” to identify the Doe Defendants, because the Defendants allegedly used false names on their various websites and social networking profiles. DFSB Kollective Co., at *2, 4. The service providers included:
SoftLayer;
Facebook;
Twitter;
Google;
MySpace;
DPS;
HostGator and
GoDaddy
DFSB Kollective Co., at *4.
Requirements for Early Discovery
Early Discovery may be allowed by a Court when there is “good cause” and “for the convenience of parties and witnesses and in the interests of justice.” DFSB Kollective Co., at *4, citing Fed. R. Civ. P. 26(d).
A Moving Party must show the following to conduct early discovery:
(1) Identify the defendant with enough specificity to allow the Court to determine whether the defendant is a real person or entity who could be sued in federal court;
(2) Recount the steps taken to locate the defendant;
(3) Show that its action could survive a motion to dismiss; and
(4) File a request for discovery with the Court identifying the persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information.
DFSB Kollective Co., at *4, citing Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
Downloading Good Cause
The Court found good cause for early discovery, because ISP subscriber logs are retained for a short time before the data is lost. DFSB Kollective Co., at *5. In short, time is of the essence to identify Doe Defendants with ISP information.
The Court outlined how the Plaintiffs had satisfied the four-factor test for conducting early discovery:
Defendants specifically identified e-mail addresses, user IDs, and account numbers.
The Defendants had hired investigators and presented the findings to the Court.
The Defendants established that the Complaint would likely to survive a motion to dismiss.
The Defendants demonstrated there was a reasonable likelihood that third-party discovery would produce identifying information, with a couple of big caveats.
DFSB Kollective Co., at *5-6.
The Court’s Terms & Conditions on Limited Discovery
The Court’s order was limited to six of the third-parties, because the Plaintiffs did not show a connection between MySpace and GoDaddy to the Defendant. DFSB Kollective Co., at *6-7. The Court noted that the MySpace account appeared dormant and contained no references to the Defendants’ website. Id.
Additionally, the Court limited the search into the different email addresses down to two, because those addresses appeared connected to the alleged infringing activity. DFSB Kollective Co., at *7.
Furthermore, the Court did not allow the Plaintiff to subpoena the Defendants’ financial institutions. Id.
The subpoenas were limited to the production of the names, addresses, phone numbers, e-mail addresses, and physical addresses associated with those accounts. Id.
No Tonkin Gulf Resolution for Production
Echoing the logic that enacted the War Powers Act, the Court refused to give an open-ended order where the Plaintiff could seek discovery from “other necessary entities that may be uncovered during discovery.” DFSB Kollective Co., at *7-8.
Pistols at Downloading: Dueling Procedures for Third-Party Service Providers
The third-party service providers subject to the discovery order were required to serve a copy of the subpoena on their affected subscribers. If the subscribers did not file a motion to quash, the third-parties would then produce the required information within 10 days. DFSB Kollective Co., at *8-9.
Bow Tie Thoughts
Early discovery from third-party service providers walks a delicate line between furthering the interests of justice and violating privacy laws. In this case, early discovery was absolutely required to identify the Doe Defendants. Early discovery from third-party service providers is often the only way to identify committing an online tort.
However, the idea of a Court giving a very open-ended Order to seek discovery from “other necessary entities that may be uncovered during discovery” should give everyone pause. Discovery requests are supposed to be narrowly tailored and reasonably particular against an entity; a blank check to seek discovery from un-named third-party service providers would be a very dangerous precedent. If a third-party is identified and has a causal connection to a case that may produce information to identify a doe defendant, a party should bring it before the Court for expedited discovery.
The other risk with early discovery is ordering the production of otherwise privileged information. For example, California has a state constitutional right to privacy which might apply in some cases. The Stored Communication Act protects the contents of email messages from production by a third-party. Financial information is also often protected by both Federal and State laws. While producing names, addresses, phone numbers, e-mail addresses, and physical addresses is within the interests of justice, Courts must guard against these procedures from being abused.
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