Summary
In Arista Records, a copyright infringement action, the court permitted expedited discovery regarding a third-party Internet Service Provider (“ISP”) for the limited purpose of allowing the plaintiffs to “determine the true identities of the Doe Defendants.
Summary of this case from Trainor v. DoeOpinion
Civil Action No. 07-cv-00628-EWN-MEH.
April 4, 2007
ORDER ON EX PARTE APPLICATION FOR LEAVE TO TAKE IMMEDIATE DISCOVERY
Plaintiffs have filed an Ex Parte Application for Leave to Take Immediate Discovery (Docket #2) ("Ex Parte Application"). This motion has been referred to this Court by District Judge Edward Nottingham (Docket #7). In their motion and supporting brief, Plaintiffs seek leave of Court in advance of a Rule 26(f) conference to conduct immediate but limited discovery with regard to a third party Internet Service Provider ("ISP") for purposes of allowing the Plaintiffs to determine the true identities of the Doe Defendants in this copyright infringement action. For the reasons stated below, the Court grants, in part, and denies, in part, the Ex Parte Application.
I. Facts
Plaintiffs allege copyright infringement against nine Doe Defendants for distribution and/or duplication of copyrighted sound recordings owned or controlled by the Plaintiffs via an online media distribution system, without the Plaintiffs' authorization and in violation of federal copyright laws. At this time, the Plaintiffs are only able to identify the Defendants by their Internet Protocol ("IP") addresses. Therefore, the Plaintiffs seek leave of court to undertake expedited discovery to obtain identifying information from the Defendants' Internet Service Provider ("ISP") prior to the time authorized for such discovery as provided by the Federal Rules of Civil Procedure. Specifically, the Plaintiffs desire to serve a Rule 45 subpoena upon Qwest Communications Corp. ("Qwest"), the ISP which has been identified for the Defendants, to obtain subscriber activity logs or documents identifying each of the Defendants' true name, current (and permanent) addresses and telephone numbers, e-mail addresses, and Media Access Control ("MAC") addresses). Plaintiffs request that any order issued by Court in this regard make clear that Qwest is authorized to respond to the subpoena pursuant to the Cable Communications Act ("Cable Act"), see 47 U.S.C. § 551(c), because it is the Plaintiffs' position that the Cable Act does not apply to cable Internet providers.
The Cable Communications Policy Act generally prohibits the disclosure of certain personal information regarding subscribers which is possessed by cable television companies. Plaintiffs indicate that "cable ISPs have expressed concern about their obligations under the Cable Act, and some have taken the position that a court order is required before they will disclose subscriber information."
II. Discussion
As Plaintiffs note, discovery prior to a Rule 26(f) conference may be permitted in the discretion of the Court upon a showing of good cause. See Qwest Communications Int'l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003); Pod-ners, LLCv. Northern Feed Bean of Lucerne LLC, 204 F.R.D. 675, 676 (D. Colo. 2002). In this case, Plaintiffs allege several bases for establishing good cause. Primary among these is the indication that an ISP typically retains user activity logs for only a limited time, and then the logs are erased. Without these logs, the true identities of the Defendants may never be known. Plaintiffs have proposed narrowly tailored discovery which will ultimately permit them to serve process if possible and move forward with this lawsuit, by use of a Rule 45 subpoena served upon the Defendants' ISP, Qwest.
However, while the Court finds that the limited discovery proposed by the Plaintiffs is appropriate, the Court declines the Plaintiffs' invitation to frame an order which will make resolution of the issue of whether the Cable Act applies to cable Internet providers unnecessary based solely upon the beliefs expressed by the Plaintiffs in their current motion. Accordingly, Plaintiffs shall serve a copy of this Order along with the subpoena and Qwest may move to quash the subpoena if it deems appropriate and as allowed by the Federal Rules of Civil Procedure.
III. Conclusion
Accordingly, for the reasons stated above, it is hereby ORDERED that the Plaintiff's Ex Parte Application for Leave to Take Immediate Discovery [Filed March 29, 2007; Docket #2] is granted, in part, and denied, in part, as follows:
1. Plaintiffs are authorized to serve the subpoena they have requested upon Qwest, seeking information sufficient to identify each Defendant's true name, address, telephone number, e-mail address, and Media Access Control address.
2. Any information disclosed to Plaintiffs in response to the subpoena may be used by the Plaintiffs solely for the purpose of protecting Plaintiffs' rights under the Copyright Act, as set forth in the Complaint.
3. Plaintiffs shall serve a copy of this Order along with the subpoena.
4. No directive set forth herein abrogates the protections afforded to Qwest under Fed.R.Civ.P. 45(c).