United States District Court, D. Hawaii
ORDER GRANTING PLAINTIFF'S EX-PARTE MOTION FOR
LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F)
S.C. CHANG, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Bodyguard Productions, Inc.'s
(“Plaintiff”) Ex-Parte Motion for Leave to Serve
Third Party Subpoena Prior to a Rule 26(f) Conference
(“Motion”), filed December 14, 2017. The Court
finds this matter suitable for disposition without a hearing
pursuant to Rule 7.2(d) of the Local Rules of Practice for
the U.S. District Court for the District of Hawaii. After
carefully considering the Motion and the applicable law, the
Court hereby GRANTS Plaintiff's Motion for the reasons
set forth below.
December 13, 2017, Plaintiff commenced this copyright
infringement action. Plaintiff alleges violations for direct
and contributory copyright infringement, pursuant to 17
U.S.C. § 101, et seq. Plaintiff claims that it is the
owner of the copyright registration for the motion picture
entitled “The Hitman's Bodyguard” (“the
Work”). According to Plaintiff, Defendants used
BitTorrent, peer-to-peer file sharing protocols, to
reproduce, redistribute, and perform the Work.
conducting an investigation, Plaintiff was able to identify
Defendants' IP addresses and the related Internet Service
Providers (“ISP”) as Hawaiian Telcom and Verizon
seeks an order authorizing it to conduct limited early
discovery for the purpose of identifying Doe Defendants. In
particular, Plaintiff wishes to serve third-party subpoenas
on Hawaiian Telcom and Verizon Wireless.
Rule of Civil Procedure (“FRCP”) 26(d)(1)
provides that “[a] party may not seek discovery from
any source before the parties have conferred as required by
Rule 26(f), except . . . when authorized . . . by court
order.” Fed.R.Civ.P. 26(d)(1). In rare situations,
however, “courts have made exceptions, permitting
limited discovery to ensue after filing of the complaint to
permit the plaintiff to learn the identifying facts necessary
to permit service on the defendant.” Columbia
Ins. Co. V. Seescandy.com, 185 F.R.D. 573, 577 (N.D.
Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d
637, 642 (9th Cir. 1980)). Courts permit early discovery when
a plaintiff has established good cause. “Good
cause” may be found where the “need for expedited
discovery, in consideration of the administration of justice,
outweighs the prejudice to the responding party.”
Semitool, Inc. v. Tokyo Electron Am., Inc., 208
F.R.D. 273, 276 (N.D. Cal. 2002).
Ninth Circuit permits the use of discovery to ascertain the
identities of unknown defendants, “unless it is clear
that discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds.”
Gillespie, 629 F.2d at 642. A three-factor test is
employed in deciding whether to permit early discovery to
First, “the plaintiff should identify the missing party
with sufficient specificity such that the Court can determine
that defendant is a real person or entity who could be sued
in federal court.” Second, the plaintiff “should
identify all previous steps taken to locate the elusive
defendant” to ensure that the plaintiff has made a good
faith effort to identify and serve process on the defendant.
Third, the “plaintiff should establish to the
Court's satisfaction that plaintiff's suit against
defendant could withstand a motion to dismiss.” Further
“the plaintiff should file a request for discovery with
the Court, along with a statement of reasons justifying the
specific discovery requested as well as identification of a
limited number of persons or entities on whom discovery
process might be served and for which there is a reasonable
likelihood that the discovery process will lead to
identifying information about defendant that would make
service of process possible.”
Dallas Buyers Club, LLC v. Doe-126.96.36.199, No.
15cv2033-BAS (DHB), 2015 WL 5675540, at *2 (S.D. Cal. Sept.
25, 2015) (quoting Columbia, 185 F.R.D. at 578-80)
(internal citations omitted). Courts have also considered
whether the responding or opposing party would suffer
prejudice, whether the expedited discovery would
substantially contribute to the case moving forward, and
whether the requested information is likely to lead to
identifying information. Patrick Collins, Inc. v. Does
1-1219, No. C 10-14468 LB, 2010 WL 5422569, at *2 (N.D.
Cal. Dec. 28, 2010); AF Holdings, LLC v. Doe, Civ.
No. S-12-1078 GEB GGH, 2012 WL 1610185, at **2-3 (E.D. Cal.
May 8, 2012).
have found that good cause exists to permit “expedited
discovery to ascertain the identities of Doe defendants in
copyright infringement actions.” AF Holdings,
2012 WL 1610185, at *2 (citing UMG Recordings, Inc. v.
Doe., No. C-08-03999 RMW, 2008 WL 4104207 (N.D. Cal.
Sept. 4, 2008); Arista Records LLC v. Does 1-43,
Civil No. 07cv2357-LAB (POR), 2007 WL 4538697 (S.D. Cal. Dec.
Identification of Missing Party with Sufficient
Court finds that Plaintiff has identified Defendants with
enough specificity to enable the Court to determine that
Defendants are real persons or entities who would be subject
to the Court's jurisdiction. Exhibit 1 to the Complaint
lists the IP addresses of each Defendant, the date of the
alleged infringement, the name of the infringing file, and
the counties in which the IP addresses are located within the
State of Hawaii. 808 Holdings, LLC v. Collective of Dec.
29, 2011 Sharing Hash, Civil No. 12cv00186 MMA(RBB),
2012 WL 1648838, at *4 (S.D. Cal. May 4, 2012) (“[A]
plaintiff identifies Doe defendants with sufficient
specificity by providing the unique IP addresses assigned to
an individual defendant on the day of the allegedly
infringing conduct, and by using ‘geolocation