Opinion
Civil Action No. 07-cv-1615-REB-KLM.
September 25, 2007
ORDER
This matter comes before the Court pursuant to Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery [Docket No. 2, Filed July 31, 2007] ("Plaintiffs' application"). Having considered Plaintiffs' application, and the accompanying Memorandum of Law in Support of Ex Parte Application for Leave to Take Immediate Discovery and Declaration of Carlos Linares [Docket No. 3, Filed July 31, 2007], the Court concludes Plaintiffs' application should be GRANTED, as modified below.
On July 31, 2007, Plaintiffs filed a Complaint for copyright infringement against ten John Doe Defendants. The Complaint alleges that the John Doe Defendants have illegally distributed and/or downloaded copyrighted recordings owned by Plaintiffs in violation of the Copyright Act, 17 U.S.C. § 101, et seq. However, the identities of the John Doe Defendants are unknown. Plaintiffs assert that they are only able to identify Defendants by unique Internet Protocol addresses.
To ascertain Defendants' identities, Plaintiffs seek permission to obtain immediate discovery from Defendants' Internet Service Provider, Qwest Communications Corporation ("Qwest") by serving a Rule 45 subpoena seeking each Defendant's true name, current (and permanent) address, telephone number, email address, and Media Access Control address. According to Plaintiffs, Qwest keeps activity log files for subscribers which hold this information. [Docket No. 3, pp. 2-3].
While ordinarily a party may not seek discovery prior to conferring with its opponent pursuant to Fed.R.Civ.P. 26(d), a court order may allow expedited discovery upon a showing of good cause. Qwest Commc'ns. Int'l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003). Here, Plaintiffs argue that their immediate need of the data in the activity log files establishes good cause. They indicate that Qwest keeps the activity log files for subscribers only for a limited time. Plaintiffs might never identify the John Doe Defendants without obtaining access to the data contained in these logs. See Decl. Carlos Linares [Docket No. 3, Exhibit A].
As such, Plaintiff has sufficiently alleged good cause in support of its application. See Qwest Commc'ns, 213 F.R.D. at 419 (holding that good cause is shown where evidence sought "may be consumed or destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation"). However, because Plaintiffs' application is ex parte, Plaintiffs should serve a copy of this Order along with the subpoena, giving Qwest ten days to move to quash the subpoena if it so chooses.
IT IS HEREBY ORDERED:
1. Plaintiff's application [Docket No. 2] is GRANTED. Plaintiff's may serve a Rule 45 subpoena on Qwest that seeks information sufficient to identify each Defendant's true name, current (and permanent) address, telephone number, email address, and Media Access Control address;
2. Plaintiffs' shall serve a copy of this Order on Qwest along with the subpoena;
3. If Qwest wishes to move to quash the subpoena, it must do so within ten (10) days of being served with it; and
4. Any information disclosed to Plaintiffs in response to the subpoena may be used by Plaintiffs solely for the purpose of protecting Plaintiffs' rights under the Copyright Act as set forth in the Complaint.