Before the Court is the plaintiffs' ex parte application “pursuant to Rule 26(d) of the Federal Rules of Civil Procedure for an order authorizing plaintiffs to serve a subpoena on PayPal, Inc. to determine the identity and location of defendant, which is presently unknown to plaintiffs.” The subpoena seeks the following:

The plaintiffs contend that “[t]he subpoena is narrowly tailored to target only documents concerning the identity and location of the owner of the PayPal, Inc. accounts used in the infringing sales that are the subject of the complaint.” In support of their application, the plaintiffs submitted their attorney's declaration, stating that “[t]he complaint alleges that Mike Pavlov has, without permission, reproduced and sold copies of plaintiffs' instructors' solutions manuals using the usernames including, but not limited to, ‘Mike Pavlov’ and ‘Mike Tutorial Services,’ and e-mail addresses including, but not limited to, mikepavlovl@gmail.com.” The plaintiffs maintain that “[s]ellers, including Mike Pavlov, usually accept payment through PayPal” and that “PayPal generally knows the true identity of its users, and stores that information under the user's e-mail address.” According to the plaintiffs, they “cannot, without a subpoena on PayPal, be certain of the true identity or location of Mike Pavlov.” The plaintiffs contend:

The plaintiffs maintain that “[o]ther judges of this [c]ourt have granted similar applications authorizing subpoenas,” and only one judge “has denied similar applications.” The plaintiffs contend, “[a]s the payment system used by Mike Pavlov, PayPal probably knows the true identity and location of Mike Pavlov.” They assert that, since Rule 26(d) of the Federal Rules of Civil Procedure does not permit discovery before the parties confer pursuant to Rule 26(f), “[w]ithout the certain identity and location of Mike Pavlov this conference would not be possible, without the risk of naming and serving the improper party.”

“A motion seeking a discovery ruling is addressed to the discretion of the district court.” Baker v. F & F Inv., 470 F.2d 778, 781 (2d Cir.1972). “No ex parte order ... will be granted except upon a clear and specific showing by affidavit of good and sufficient reason why a procedure other than by notice of motion is necessary, and stating whether a previous application for similar relief has been made.” Local Civil Rule 6.1(d). “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” 22 New York Compilation of Codes, Rules and Regulations § 1200.0, Rule 3.3 of Rules of Professional Conduct. Heightened scrutiny applies in reviewing an ex parte application. See Ayyash v. Bank Al–Madina, 233 F.R.D. 325, 327 (S.D.N.Y.2005). “Except as otherwise permitted by the Court, all motions shall include ... [a] memorandum of law, setting forth the cases and other authorities relied upon in support of the motion, and divided, under appropriate headings, into as many parts as there are issues to be determined.” Local Civil Rule 7.1(a).

“A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1) (B), or when authorized under rules, by stipulation, or by court order.” Fed.R.Civ.P. 26(d)(1). Absent a stipulation by the parties, to commence formal discovery before their Rule 26(f) conference,

Recently, when applications for expedited discovery have been made in copyright infringement cases, some courts in this district have used “the flexible standard of reasonableness and good cause,” adopted in Ayyash, 233 F.R.D. at 327, to determine whether expedited discovery, pursuant to Rule 26(d), is warranted. See Digital Sin, Inc. v. Does 1–176, 279 F.R.D. 239, 241–42 (S.D.N.Y.2012) (finding that good cause existed for expedited discovery to ascertain the defendants' identities and issuing a protective order that would make the information obtained confidential); Next Phase Distrib., Inc. v. John Does 1–27, ––– F.Supp.2d ––––, No. 12 Civ. 3755, 2012 WL 3117182, at *6–7 (S.D.N.Y. July 31, 2012) (applying good cause where the plaintiff alleged a prima facie case of copyright infringement and permitting expedited discovery to identify defendant Doe No. 1, while also issuing a protective order, due to “the high likelihood of false positive[ ]” identification); Media Prods., Inc. v. Does 1–26, No. 12 Civ. 3719, 2012 WL 2190613, at *1 (S.D.N.Y. June 12, 2012) (allowing expedited discovery in a copyright infringement action to ascertain the defendants' identities and modifying the proposed subpoena to provide adequate safeguards to the defendants); Patrick Collins, Inc. v. Does 1–4, No. 12 Civ. 2962, 2012 WL 2130557, at *1–2 (S.D.N.Y. June 12, 2012) (allowing expedited discovery in a copyright infringement action to ascertain the defendants' identities and modifying the proposed subpoena to provide adequate safeguards to the defendants); Digital Sin, Inc. v. Does 1–27, No. 12 Civ. 3873, 2012 WL 2036035, at *3 (S.D.N.Y. June 6, 2012) (expedited discovery warranted to ascertain the defendants' identities where the plaintiff alleged prima facie case of copyright and contributory infringement); Malibu Media, LLC v. Does 1–5, No. 12 Civ. 2950, 2012 WL 2001968, at *1 (S.D.N.Y. June 1, 2012) (finding good cause to allow expedited discovery to ascertain the defendants' identities and providing adequate protection to the defendants); Patrick Collins, Inc. v. Does 1–6, No. 12 Civ. 2964, 2012 WL 2001957, at *1–2 (S.D.N.Y. June 1, 2012) (finding good cause to allow expedited discovery to ascertain the defendants' identities and providing adequate protection to the defendants). Other courts apply different standards in copyright infringement cases involving civil subpoenas to identify the defendants. For example, some courts “apply a three factor test when considering motions for expedited discovery to identify certain defendants,” and the plaintiff is required to (1) “identify the missing party with sufficient specificity such that the Court can determine that the defendant is a real person or entity who could be sued in federal court”; (2) “describe ‘all previous steps taken to locate the elusive defendant’ to ensure that plaintiff has made a good faith effort to identify the defendant”; and (3) “establish that its lawsuit could withstand a motion to dismiss.” AF Holdings LLC v. Doe. No. 12 cv 1519, 2012 WL 3238023, at *2 (S.D.Cal. Aug. 7, 2012) (quoting Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578–80 (N.D.Cal.1999)). These courts apply the above standard to ensure that discovery to uncover the identity of a defendant “will only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service, and will prevent use of this method to harass or intimidate.” Columbia Ins. Co., 185 F.R.D. at 578.

*4 Some courts apply the following standard: “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 America, Inc., 208 F.R.D. 273, 276 (N.D.Cal.2002); see Hard Drive Prods, Inc. v. Doe, ––– F.R.D. ––––, No. 11 CV 8333, 2012 WL 2469973, at *1 (N.D. Ill. June 26, 2012) (the court evaluated “the entirety of the record to date and the reasonableness of the request in light of all the surrounding circumstances.”). Generally, some sort of good cause standard has been applied by the courts to determine under what circumstances expedited discovery should be permitted to ascertain the defendants' identities in copyright infringement cases. See, e.g., Arista Records LLC v. Does 1–19, 551 F.Supp.2d 1, 6–7 (D.D.C.2008) (the court applied a good cause standard and noted that many other district courts also applied that standard).

The Court will apply “the flexible standard of reasonableness and good cause,” adopted in Ayyash, 233 F.R.D. at 327, and will also consider any factors relevant to the circumstances of this case, while remaining mindful of the heightened scrutiny that applies to ex parte motions.

The plaintiffs' failure to comply with Local Civil Rule 7.1(a), by not submitting a memorandum of law setting forth the cases and other authorities relied upon in support of the motion, does not aid in enabling the Court to make an informed decision on the instant ex parte motion. Notwithstanding that failure, the Court will consider the plaintiffs' contentions contained in their application, including the proposed order and subpoena, as well as their attorney's declaration.

The instant ex parte application raises significant concerns for the Court. The plaintiffs allege in their complaint that venue is proper in this judicial district “pursuant to 28 U.S.C. §§ 1391 and 1400(a).” Under § 1391, venue is proper in this judicial district if: (i) “any defendant resides” in this judicial district “if all defendants are residents of the State in which the district is located”; (ii) “a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated” in this district; or (iii) any defendant is subject to the court's personal jurisdiction with respect to the action and no other judicial district exists where the action may be brought. 28 U.S.C. § 1391(b). Under the copyright venue statute, 28 U.S.C. § 1400, venue is proper in this judicial district if the defendants reside in this district. See 28 U.S.C. § 1400(a). The plaintiffs asserted in their complaint that the defendants are natural persons “currently residing in the United States,” but failed to assert that the defendants reside in this judicial district or to make any other allegation otherwise required by the statute to justify bringing their action in this judicial district. In fact, the plaintiffs' proposed subpoena seeks “[d]ocuments sufficient to locate and identify [the] PayPal user” who is using a particular account(s).

*5 The plaintiffs' efforts to discover the location and identity of the defendants consist of searching “the usernames and e-mail addresses on Accurint, an online investigation database that Lexis–Nexis operates” and searching “the e-mail addresses and usernames on Google.” Additionally, to “determine the identity of Mike Pavlov,” the plaintiffs “purchased infringing copies of instructors' solutions manuals and paid through Paypal.” No specifics have been provided in the plaintiffs' application about the scope and nature of the “Accurint” database or the scope, nature, method and extent of the searches the plaintiffs conducted in Accurint and Google, or the results obtained. No corroborating evidence was presented in support of the contentions made by the plaintiffs' attorney about the plaintiffs' attempts to identify the defendants and their locations. Unlike in Digital Sin, Inc., 279 F.R.D. 239, where the plaintiffs not only asserted in their complaint that the defendants are likely within the geographic location of this judicial district, but also submitted, with their complaint, a verified declaration by their attorney explaining the steps taken to ascertain the defendants' locations and identities, including the use of geo-location technology and experts in the field to assist with related activities, the complaint here lacks any such assertions and the instant application lacks any specific details about the steps taken to ascertain the defendants' locations and identities. Consequently, the instant application raises, for the Court, serious concerns in this regard. In light of the complaint, the instant application does not show that the plaintiffs exhausted traditional avenues for identifying the defendants and is devoid of any ground showing sufficient reason why an ex parte application is necessary; thus, good cause for granting it is lacking.

The instant application also raises concerns for the Court about the propriety of joining John Doe Nos. 1–5 to this action, pursuant to Rule 20 of the Federal Rules of Civil Procedure. Defendants may be joined when: (a) the claim for relief is asserted against them jointly and severally or arises out of the same transaction or occurrence; and (b) a question of law or fact exists common to all defendants. See Fed.R.Civ.P. 20(a)(2). The complaint alleges that “Defendants have, without permission, reproduced and sold copies of plaintiff's works.” Given the split in district courts about the propriety of joinder in copyright infringement cases naming unknown defendants where expedited discovery is sought to ascertain their identities, e.g., compare Next Phase Distrib., Inc ., 2012 WL 3117182 (severing and dismissing John Does 2–27), with Digital Sin. Inc., 279 F.R.D. at 244 (permitting joinder of John Does 1–176 for the purpose of the initial discovery), the concerns raised by the paucity of allegations in the complaint about John Doe Nos. 1–5, the implications the instant ex parte motion engenders on the rights, obligations and privacy concerns of PayPal, Inc. as well as the persons whose personal information is sought to be subpoenaed, the Court has grave reservations about the propriety of granting the instant motion.

*6 Moreover, an independent basis exists for not granting the plaintiffs' ex parte application for expedited discovery. The plaintiffs contend that their request is “narrowly tailored to target only documents concerning the identity and location of the owner of the PayPal, Inc. accounts used in the infringing sales that are subject of the complaint.” However, their proposed subpoena sweeps broadly, seeking: (a) “[d]ocuments sufficient to locate and identify the PayPal, Inc.... user using the account of Mike Pavlov and/or Michael Pavlov [and the account of Mike Tutorial Services] under any username”; and (b) “[d]ocuments sufficient to locate and identify the PayPal user using the account with the username” Mike Pavlov, Mike Tutorial Services and “the account with the e-mail address mikepavlovl@gmail.com.” The contention that the subpoena seeks to discover “the identity and location of the owner of the PayPal, Inc. accounts used in the infringing sales” is not supported by the language of the subpoena, because the subpoena does not mention the word “owner”; instead, it seeks to discover much more, namely, the identity and location of any user(s) of certain PayPal accounts under any username(s), as well as the identity and location of the user(s) of certain PayPal accounts under particular username(s).

Furthermore, the subpoena seeks to locate and identify the PayPal “user using the account of ... Michael Pavlov,” a name not mentioned in the complaint. While the complaint alleges that the defendants infringed the plaintiffs' copyright in their works, “by using the usernames including, but not limited to, ‘Mike Pavlov’ and ‘Mike Tutorial Services,’ “ nowhere does it allege that the unlimited usernames to which the complaint refers have been used in connection with “the account of ... Michael Pavlov.” Thus, the subpoena is overly broad and is not, as the plaintiffs assert, “narrowly tailored to target only documents concerning the identity and location of the owner of the PayPal, Inc. accounts used in the infringing sales that are the subject of the complaint.”

Additionally, in light of the broad sweep of the subpoena, the plaintiffs' contention that “[a]s the payment system used by Mike Pavlov, PayPal probably knows the true identity and location of Mike Pavlov,” is another ground for not granting the plaintiffs' motion. That “PayPal probably knows the true identity and location of Mike Pavlov” does not constitute a clear and specific showing of good and sufficient reason why the instant ex parte application is necessary and it does not show that good cause exists to grant the application. No basis is provided or explanation made for that contention, or the one that “PayPal generally knows the true identity of its users, and stores that information under the user's e-mail address.” Notwithstanding the absence of any information about PayPal[1] in the plaintiffs' application or the basis for the plaintiffs' contention that “PayPal probably knows the true identity and location of Mike Pavlov,” it is not clear why that contention is limited to “Mike Pavlov,” given that: (a) the allegations are made against “John Doe d/b/a Mike Pavlov d/b/a Mike Tutorial Services and John Doe Nos. 1–5”; and (b) the subpoena seeks more than that which is contended “PayPal probably knows.” Accordingly, granting the instant ex parte application is not warranted.

*7 Upon careful review of the plaintiffs' ex parte application, and for the foregoing reasons, the Court finds that the plaintiffs failed to sustain their burden of making a clear and specific showing of good and sufficient reason why their ex parte motion is necessary and that good cause exists warranting the Court in granting the application. Therefore, the plaintiffs' ex parte application for expedited discovery, Docket Entry No. 2, is denied.

SO ORDERED:

“PayPal is Only a Payment Service Provider. PayPal helps you make payments to and accept payments from third parties. PayPal is an independent contractor for all purposes, except that PayPal acts as your agent with respect to the custody of your financial funds.” PayPal User Agreement, http s://cms.paypal.com/us/cgi-bin/?cmd=_render-content & content_ID=ua/ UserAgreement_full (last visited Sept. 28, 2012). “PayPal is a TRUSTe licensee.” PayPal Privacy Policy, https://cms.paypal.com/us/cg i-bin/marketingweb?cmd=_render-content & content_ID =ua/Privacy_full & locale.x=en_US (last visited Sept. 28 2012); see TRUSTe License Agreement, http://www.ftc.gov/os/2000/09/trustelicenseagreement.pdf (Last visited Sept. 28, 2012)