Digital Sin, Inc. v. Does 1-176

279 F.R.D. 239, 2012 U.S. Dist. LEXIS 10803, 2012 WL 263491
CourtDistrict Court, S.D. New York
DecidedJanuary 30, 2012
DocketNo. 12-CV-00126 (AJN)
StatusPublished
Cited by512 cases

This text of 279 F.R.D. 239 (Digital Sin, Inc. v. Does 1-176) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 2012 U.S. Dist. LEXIS 10803, 2012 WL 263491 (S.D.N.Y. 2012).

Opinion

OPINION AND ORDER PERMITTING LIMITED EXPEDITED DISCOVERY PURSUANT TO A PROTECTIVE ORDER

ALISON J. NATHAN, District Judge:

Plaintiff Digital Sin, Inc. (“Digital Sin”) filed an ex parte motion seeking permission to take expedited discovery from third-party Internet Service Providers (“ISPs”) to identify the names, physical addresses, e-mail addresses, and Media Access Control (“MAC”) addresses associated with identified Internet Protocol (“IP”) addresses that Digital Sin alleges were used to illegally share its copyrighted motion picture in violation of 17 U.S.C. § 101 et seq.

Litigation of this nature, involving ex parte applications for expedited discovery of identifying information pertaining to hundreds or thousands of John Doe defendants, is proliferating in this district and throughout the country. Some courts, faced with these ex parte applications for expedited discovery, have expressed serious concerns about the nature of the litigation and have denied the ex parte applications or severed all but one of the Doe defendants.1 Other courts have granted the applications and issued orders allowing the expedited discovery to proceed in order to identify the Doe defendants.2

This Court has serious reservations about the ex parte application and the proposed order submitted by the Plaintiff. Nevertheless, for the reasons discussed below, the Court finds that gobd cause exists for Digital Sin to engage in cabined expedited discovery with respect to the IP addresses listed in Exhibit A to its Complaint (Docket # 1), but only pursuant to a protective order as outlined in Section III.

I. Background

Digital Sin is a California company that produced a motion picture titled “My Little Panties # 2” (“Motion Picture”). Digital Sin alleges the following facts in its Complaint, memorandum of law and accompanying declaration. The Court, while making no findings, accepts these facts as true for purposes of this ruling.

[241]*241Digital Sin contracted “Copyright Enforcement Group” (“CEG”), a company that discovers copyright infringements and arranges for enforcement (Nieolini Dec. ¶3). CEG determined that a number of individuals were sharing the Motion Picture using an internet protocol called BitTorrent. (Comp. ¶¶ 12; Nieolini Dec. ¶¶ 917). BitTorrent software allows users to join together in a “peer-to-peer” network to download and make available for download large files, (Nieolini Dee. ¶¶ 5-7). The individual downloaded might only download small pieces of the file at a time and it may take several days or even weeks for an individual to download an entire file. (1/17/12 Tr. at 10). While downloading, the downloader is also required to share with others the pieces of the file that she or he has already successfully downloaded. (Id. at 13-14). This group of interacting users is referred to as a “swarm.” (Nieolini Dec. ¶ 6).

Individuals who participate in a swarm expose the IP address they are using when downloading or sharing a file. (Comp. ¶ 12). As a result, CEG was able to obtain 176 IP addresses that were being used to share and download the same Motion Picture file without permission. (Id.). Publicly available “reverse IP” checks confirmed that all of these addresses very likely belong to individuals located in New York. (Comp. ¶ 14).3

Immediately after initiating its complaint against the 176 John Doe defendants, identifying them by their IP addresses, Digital Sin filed an ex parte motion for expedited discovery seeking access to the names and addresses of the individuals affiliated with the IP addresses as found in the ISPs’ account records. Plaintiff alleges that this account information may be routinely erased by ISPs and therefore lost forever if Plaintiffs motion is not granted on an expedited basis. (Nicolini Dec., ¶ 27). In response to Plaintiffs ex parte motion, the Court ordered an ex parte conference call with Plaintiffs counsel on January 17, 2012. Plaintiffs counsel was asked to address the Court’s concerns regarding privacy, joinder, and the potential for misidentification of defendants.

II. Discussion

A. Good Cause Standard

Though parties generally may not initiate discovery prior to satisfying the meet and confer requirement of Fed.R.Civ.P. 26(f), courts may in some instances order earlier discovery. Fed.R.Civ.P. 26(d). Courts in this district have applied a “flexible standard of reasonableness and good cause” in determining whether to grant a party’s expedited discovery request. Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326-27 (S.D.N.Y.2005) (Lynch, J.); see also Stern v. Cosby, 246 F.R.D. 453, 457 (S.D.N.Y.2007) (Chin, J.); accord 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2046.1 (3d ed. 2011) (“Although [Rule 26(d)] does not say so, it is implicit that some showing of good cause should be made to justify such an order, and courts presented with requests for immediate discovery have frequently treated the question whether to authorize early discovery as governed by a good cause standard.”). Courts have also applied “particularly careful scrutiny” when plaintiffs seek expedited discovery on an ex parte basis. Ayyash, 233 F.R.D. at 327.

Here, Plaintiff has alleged a prima facie case of infringement sufficient for purposes of this motion and appears to have no other way of obtaining the identities of the alleged infringers. Absent a Court-ordered subpoena, many of the ISPs, who qualify as “cable operators” for purposes of 47 U.S.C. § 522(5), are effectively prohibited by 47 U.S.C. § 551(c) from disclosing the identities of the putative defendants to Plaintiff. Indeed, in all of the opinions and rulings in similar cases around the country, the Court has found no indication that the plaintiffs have any reasonable alternative to these subpoenas to obtain the identities of the alleged [242]*242infringers. Thus, without granting Plaintiffs request, the defendants cannot be identified or served and the litigation cannot proceed. Additionally, expedited discovery is necessary to prevent the requested data from being lost forever as part of routine deletions by the ISPs.

Under these circumstances, the Court finds that Plaintiff has established good cause to issue a Rule 45 subpoena to the ISPs listed in Exhibit A to its Complaint (Docket # 1) to obtain the name, physical address, e-mail address, and MAC address associated with each defendant IP address subject to the protective order outlined in Sections II.B and III below.

B. Protective Order

District courts may for good cause issue a protective order to spare parties “annoyance, embarrassment, oppression, or undue burden.” Fed.R.Civ.P.

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279 F.R.D. 239, 2012 U.S. Dist. LEXIS 10803, 2012 WL 263491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/digital-sin-inc-v-does-1-176-nysd-2012.