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 providers ("ISP"), Time Warner Cable and
Century Link, which plaintiff asserts provided internet
services to the 11 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 or Century Link 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 Am. Mem. (D.E. 6) 3-4
§ I; Compl. (D.E. 1) ¶ 13 & 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't 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. ¶¶ 22, 33. 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
and Century Link 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 Am. Mem. 6-7 § 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 4 § I.
THEREFORE ORDERED as follows:
to each defendant, plaintiff may serve on Time Warner Cable
or Century Link 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 and Century Link
are 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.
Warner Cable and Century Link 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 or Century Link of the filing of any motion to
quash or modify a subpoena within one day after the filing of
the motion. Time Warner Cable and Century Link shall each
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 subpoena.
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 ...