Living Scriptures, Inc. v. Doe(s)
Living Scriptures, Inc. v. Doe(s)
2010 WL 4687679 (D. Utah 2010)
November 10, 2010
Wells, Brooke C., United States Magistrate Judge
Summary
The Court granted Plaintiff's Ex Parte Motion for Expedited Discovery due to the claims of copyright infringement and the transitory nature of the ESI. The Court ordered Plaintiff to serve Rule 45 subpoenas to Paypal, Inc. and Ebay, Inc. for account information in their possession for the listed business names or individuals, and to serve a copy of the Order along with any subpoenas issued pursuant to the Order on any entity subpoenaed.
LIVING SCRIPTURES, INC., Plaintiff,
v.
John DOE(s), Defendants
v.
John DOE(s), Defendants
No. 1:10 cv 0182 DB
United States District Court, D. Utah, Central Division
November 10, 2010
Counsel
Blair R. Jackson, Invictus Law PC, Lehi, UT, for Plaintiff.Wells, Brooke C., United States Magistrate Judge
ORDER AND MEMORANDUM DECISION GRANTING PLAINTIFF'S EX PARTE MOTION FOR EXPEDITED
*1 Before the Court is Plaintiff's Ex Parte Motion for Expedited Discovery filed November 3, 2010.[1] Plaintiff filed a complaint against a currently unknown person or entity alleging that Defendant is selling “cheap pirated versions” of Plaintiff's products through online retailers and auctions such as eBay and Paypal.[2] Plaintiff alleges this is a violation of copyright law and that Defendant, by its unauthorized appropriation of Plaintiff's materials, is competing unfairly deceiving the purchasing public. Plaintiff seeks expedited discovery to help facilitate the proper identification and service of the unknown Defendant(s). Generally, “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)”[3] unless authorized by a court order or agreement of the parties. “[A] party seeking expedited discovery in advance of a Rule 26(f) conference has the burden of showing good cause for the requested departure from usual discovery procedures.”[4] After reviewing Plaintiff's Complaint, the Ex Parte Motion for Expedited Discovery, the memorandum in support, and relevant case law, the Court finds good cause and therefore GRANTS the Motion for Expedited Discovery.
Under Rule 26(d) “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)”[5] The traditional sequence of discovery may, however, be altered by the court in the exercise of its broad discretion. But, the party seeking expedited discovery in advance of a Rule 26(f) conference bears the burden of showing good cause for departing from the usual discovery procedures.[6] Good cause exists “where a party seeks a preliminary injunction ... or where the moving party has asserted claims of infringement and unfair competition.”[7]Additionally, good cause is also found “where physical evidence may be consumed or destroyed with the passage of time.”[8]
In essence, the unknown Defendant or Defendants are using online auction sites, such as eBay, to distribute pirated copies of Plaintiff's copyrighted products. Previously, Plaintiff has notified eBay and Paypal of these illegal activities and Defendant was “temporarily stopped.” But, shortly thereafter Defendant changes aliases and continues to market illegal products.
Plaintiff asserts that it needs the discovery to identify the John Doe Defendant and to file a motion for a preliminary injunction. Plaintiff further asserts that it will preserve relevant evidence because the evidence is electronic in nature and can be destroyed relatively easily or deleted in the normal course of business.
ORDER
Here, the Court finds that good cause exists to permit expedited discovery. Plaintiff raises claims concerning copyright infringement and courts routinely allow discovery into the identities of defendants in cases like this one.[9]Additionally, the information Plaintiff seeks is transitory in nature and without such information this case cannot commence. Accordingly, it is hereby
*2 ORDERED that Plaintiff's Ex Parte Motion for Expedited Discovery is GRANTED.
It is FURTHER ORDERED that Plaintiff may immediately serve Rule 45 subpoenas, which are limited to the following categories of entities and information:
1. From Paypal, Inc., all account information in their possession for the below listed business names or individuals, including but not limited to the account holder's name, the account holder's address, the account holder's telephone number, the account holder's bank name, the account holder's bank account number, and the account holder's routing number.
2. From Ebay, Inc. all account information in their possession for the below listed names or individuals, including but not limited to the account holder's name, the account holder's address, the account holder's telephone number, the account holder's bank name, the account holder's bank account number, and the account holder's routing number.
3. For the following names and Individuals:
amayakire
uudd123
rbutterflys
babybabye
vivithebests
prettyblke
amekaic
huemayasato
movingontothenext
vivithebests
crazylvrabbits
feyazs
katkatl209 aka Headboss898
katkat1209
apples—m
fulma888
Michael Cheung
Leslie Street, Queensville, ON, ON, LOG 1V0
CA
Jenny Cheung
112 Merton Street
toronto ON M4S2Z8
Canada
Seller's Email-vivithebest@post.com
Kai Cheung
Unit 712
1 President's Choice Circle
Brampton ON L6Y 5S5
Canada
Seller's Email: Amayachane@yahoo.ca
Hua Cheung
277 Coachwhip Trail
Newmarket Ontario L3X 2Y4
Canada
Seller's Email: kaikaic@live.com
It is FURTHER ORDERED that Plaintiff shall serve a copy of this Order along with any subpoenas issued pursuant to this Order on any entity subpoenaed pursuant to this Order.
Finally it is ORDERED that if any entity subpoenaed pursuant to this Order wishes to move to quash the subpoena, it must do so within twenty (20) days of being served with it.
Footnotes
Docket no. 4. Judge Benson referred this case to the undersigned on November 8, 2010.
See generally, Complaint.
Fed.R.Civ.P. 26(d).
Qwest Communications Int'l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D.Colo.2003).
Fed.R.Civ.P. 26(d).
Qwest, 213 F.R.D. at 419.
See, e.g., Warner Bros. Record Inc. v. Does 1–14, 555 F.Supp.2d 1, 1–2 (D.D.C.2008); Bremenn Research Labs, LLC v. Does 1–20, No. 2:07–cv–45–TC (D.Utah Feb. 12, 2007); MicrosoftCorp. v.. Does 1–217, No C06–1192 (W.D.Wash. Sept. 14, 2006).