A Montreal-based producer and distributor of adult entertainment content petitioned a District Court for leave to issue early discovery in order to obtain identifying information on 17 "Doe defendants" whom it alleges violated copyright laws by reproducing and distributing a portion of its adult video through peer-to-peer file sharing. VPR Internationale v. Does 1-17, No. C 11-01494 LB, 2011 WL 1465836 (N.D. Cal. Apr. 15, 2011). The District Court for the Northern District of California held that Plaintiff, VPR, had established "good cause" to conduct preliminary discovery on the ISPs that assigned an IP address to the Doe defendants.
VPR filed suit against the 17 un-named defendants alleging that the individuals distributed portions of one of VPR's adult videos to several third parties through BitTorrent-based peer-to-peer networks in violation of the Copyright Act, 17 U.S.C. § 101 et seq. Because the peer-to-peer networks partially protected the anonymity of the user, VPR was unable to complete service of process. However, VPR had obtained the IP address assigned to each Doe defendant and the ISP for each IP address. Armed with that information, VPR requested that the Court grant it leave to conduct early discovery to obtain the identities of each defendant.
Pursuant to Fed. R. Civ. P. 26(d) a court may authorize a party to conduct preliminary discovery before the Rule 26(f) conference for the convenience of the parties or witnesses and in the interests of justice. To do so, the Ninth Circuit has generally required the moving party to show "good cause" for the early discovery. Noting that plaintiffs "should be given an opportunity through discovery to identify the unknown defendants," the court applied a four factor test to determine whether good cause existed for VPR's motion. The test requires a court to determine "whether the plaintiff (1) identifies the Doe defendant with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will permit service of process."
Holding that VPR had satisfied each factor of the test, the Court first determined that by submitting the Doe defendants' IP addresses, it had sufficiently and specifically identified the unknown defendants. Second, the Court held that VPR adequately set forth the steps it had taken to locate the defendants by including the IP addresses, the ISP that assigned the IP address and by providing the date and time of each infringement. Next, the Court summarily ruled that VPR had alleged the essential elements of its causes of action to sufficiently withstand a motion to dismiss. Finally, the Court held that the subpoena to each ISP was "likely to lead to identifying information that will allow VPR to effect service of process on the Doe defendants."
Furthermore, the Court found that permitting the early discovery would "further the interests of justice" and pose "little, if any, inconvenience to the subpoena recipients." In granting plaintiff's motion however, the Court denied VPR's open-ended request that it be allowed to subpoena "any other entity later identified." If such entity is later identified by VPR, it will have to submit a declaration to the Court re-alleging facts sufficient to satisfy the four factor test with respect to that entity.