United States District Court, E.D. North Carolina, Eastern 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"), Century Link, which
plaintiff asserts provided internet services to the 15
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 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 Mem. (D.E. 5) 3-4 § I; Am. Compl.
(D.E. 7) ¶ 13 & Ex. B (D.E. 7-2).
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. Am. Compl. ¶¶ 20, 31. It seeks
identifying information for defendants in order to be able to
litigate its infringement claims against them. Plaintiff
contends, plausibly, that obtaining from 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 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:
Plaintiff s motion (D.E. 4) is ALLOWED on the terms set forth
to each defendant, plaintiff may serve on 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.
Century Link 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.
Within seven days after the date of plaintiffs service on
Century Link of a subpoena authorized herein, Century Link
shall serve written notice of the subpoena on the defendant
about whom documents are sought in the subpoena. If Century
Link or the defendant about whom documents are sought in a
subpoena wishes to have the subpoena quashed or modified,
such person (whether it be Century Link or the defendant)
must file 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 Century Link.
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 arid
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 Century Link of the filing of
any motion to quash or modify a subpoena within one day after
the filing of the motion. Century Link 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 subpoena.
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.
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 ...