United States District Court, E.D. North Carolina, Western Division
E. GATES UNITED STATES MAGISTRATE JUDGE
copyright infringement case comes before the court on
plaintiffs motion (D.E. 4) for leave to take discovery prior
to conducting a conference pursuant to Rule 26(f) of the
Federal Rules of Civil Procedure. Specifically, plaintiff
seeks leave to serve one or more subpoenas pursuant to
Federal Civil Rule of Civil Procedure 45 on the internet
service provider ("ISP"), Time Warner Cable, which
plaintiff asserts provided internet services to the fifteen
defendants named in the complaint, all designated as a
"Doe" defendant. Although plaintiff has the
internet protocol ("IP") address associated with
each defendant, along with the identity of Time Warner Cable
as the ISP for each and the city and county in which the
alleged infringement occurred, it seeks to obtain by the
subpoenas more comprehensive identifying information for each
defendant, including the name and address of each.
See PL's Mem. (D.E. 8) 1-2 § I; Compl.
(D.E. l)¶15&Ex. B(D.E. 1-2).
discovery is not permitted until after the parties have
conferred pursuant to Rule 26(f). Fed.R.Civ.P. 26(d)(1).
However, the court has discretion to alter the timing and
sequence of discovery. Id. While the Federal Rules
of Civil Procedure do not set forth the standard to be
applied in assessing a motion for expedited discovery, courts
typically apply either a reasonableness or good cause test
taking into account the totality of the circumstances, or a
modified preliminary injunction test. Gaming v. W.G.
Yates & Sons Constr. Co., No. 1:16CV30, 2016 WL
3450829, at *3 (W.D. N.C. 16 June 2016); Lewis v.
Alamance Cty. Dep 7 of Soc. Servs., No.
1:15CV298, 2015 WL 2124211, at *1 (M.D. N.C. 6 May 2015).
court agrees with the courts in this circuit that have
applied the reasonableness or good cause standard to requests
for expedited discovery. See Gaming, 2016 WL
3450829, at *3; Chryso, Inc. v. Innovative Concrete Sols,
of the Carolinas, LLC, No. 5:15-CV-115-BR, 2015 WL
12600175, at *3 (E.D. N.C. 30 June 2015). Factors that courts
consider under this test include the procedural posture of
the case, whether the discovery requested is narrowly
tailored, whether the party seeking the information would be
irreparably harmed by waiting until after the parties conduct
their Rule 26(f) conference, and whether the information
sought would be unavailable or subject to destruction in the
absence of expedited production. Chryso, 2015 WL
12600175, at *3
plaintiff alleges that defendants have acquired and
transferred without authorization a movie for which plaintiff
holds the copyright. Compl. ¶ 9. It seeks identifying
information for defendants in order to be able to litigate
its infringement claims against them. Plaintiff contends,
plausibly, that obtaining from Time Warner Cable as
defendants' ISP the information it seeks regarding the
defendants' identity is the only means it has to identify
defendants and litigate its claims. PL's Mem. 4-5 §
II.B.3. Indeed, without the identifying information for
defendants, enabling plaintiff to bring them into this case,
no Rule 26(f) conference could be held. The information
plaintiff seeks is narrowly tailored to meet its objective of
identifying defendants. It consists of the true name,
permanent address, current address, telephone number, email
address, and media access control address of each defendant.
Id. at 2 § I.
THEREFORE ORDERED as follows:
1. Plaintiffs motion (D.E. 4) is ALLOWED on the terms set
2. As to each defendant, plaintiff may serve on Time Warner
Cable a separate subpoena that seeks documents containing the
name, permanent address, current address, telephone number,
e-mail address, and media access control address of the
defendant. Time Warner Cable is ordered to provide the
documents sought in each subpoena in accordance with the
terms of this order. Plaintiff shall attach to each subpoena
a copy of this order.
3. Within seven days after the date of plaintiff s service on
Time Warner Cable of a subpoena authorized herein, Time
Warner Cable shall serve written notice of the subpoena on
the defendant about whom documents are sought in the
subpoena. If Time Warner Cable or the defendant about whom
documents are sought in a subpoena wishes to have the
subpoena quashed or modified, such person (whether it be Time
Warner Cable or the defendant) must fde with the court and
serve on counsel for plaintiff a motion to quash or modify
the subpoena prior to the return date for the subpoena (which
is the date specified in the subpoena for production of the
documents sought). The return date shall be no earlier than
21 days after the date of service by plaintiff of the
subpoena on Time Warner Cable.
4. Time Warner Cable shall not produce any documents in
response to a subpoena prior to the return date or, if any
motions to quash or modify are filed with respect to the
subpoena, unless and until an order is entered denying any
such motions and permitting production pursuant to the
subpoena (in which case production shall be in accordance
with the terms of such order). Plaintiff shall notify Time
Warner Cable of the filing of any motion to quash or modify a
subpoena within one day after the filing of the motion. Time
Warner Cable shall make appropriate arrangements to ensure
that it has notice of any motions to quash or modify a
subpoena before it produces any documents in response to the
5. Any documents produced to plaintiff in response to a
subpoena, including the information contained therein, may be
used by plaintiff solely for the purpose of prosecuting its
infringement claims in this action.
6. Except as expressly provided herein, by further order of
the court, or in the Federal Rules of Civil Procedure,
plaintiff may not engage in discovery in this action prior to