Arista Records LLC v. Does 1-20
Arista Records LLC v. Does 1-20
2005 WL 3776346 (D. Colo. 2005)
January 24, 2006
Miller, Walker D., United States District Judge
Summary
The court granted Plaintiffs' request to obtain immediate discovery from Defendants' ISP, Adelphia Communications Corp., in order to identify the John Doe Defendants. The court allowed Plaintiffs to serve a subpoena on Adelphia for each Defendant's true name, address, telephone number, e-mail address, and MAC address. The court also ordered Adelphia to notify each Defendant of the Order. Electronically stored information was essential in this case as it was the only way for Plaintiffs to identify the Defendants.
ARISTA RECORDS LLC, et al., Plaintiffs,
v.
DOES 1–20, Defendants
v.
DOES 1–20, Defendants
No. 05–CV–2144–WDM–PAC
United States District Court, D. Colorado
Filed
October 26, 2005
November 07, 2005
Terminated
January 24, 2006
Last filing January 24, 2006
Counsel
Mark Douglas Elliott, Elliott Law Offices, Arvada, CO, Attorney to be Noticed, for Arista Records LLC, (Plaintiff).Richard Lance Gabriel, Holme, Roberts & Owen, LLP–Denver Co, Denver, CO, Lead Attorney, Attorney to be Noticed, for Arista Records LLC, (Plaintiff).
Timothy Michael Reynolds, Holme, Roberts & Owen, LLP–Denver Co, Denver, CO, Lead Attorney, Attorney to be Noticed, for Arista Records LLC, (Plaintiff).
Miller, Walker D., United States District Judge
ORDER
*1 This matter is before me on the Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery (“Application”), filed October 26, 2005. Having considered the Application, Plaintiffs' memorandum of law in support of the Application, and the Declaration of Jonathan Whitehead, I conclude that the Application should be granted, as modified below.
On October 26, 2005, Plaintiffs filed a complaint for copyright infringement against twenty John Doe defendants (“Defendants”). The complaint alleges that Defendants distributed and/or duplicated copyrighted sound recordings owned or controlled by the Plaintiffs without Plaintiffs' authorization via an online media distribution system in violation of 17 U.S.C. § 101 et seq. However, Plaintiffs are only able to identify Defendants with an unique Internet Protocol (“IP”) address; they do not know Defendants' names or any other identifying information.
Consequently, Plaintiffs seek permission to obtain immediate discovery from Defendants' Internet Service Provider (“ISP”), Adelphia Communications Corp. (“Adelphia”), whose subscriber activity log files would allow Plaintiffs to discover Defendants' identities. Specifically, they wish to serve a subpoena on Adelphia pursuant to Fed.R.Civ.P. 45, seeking each Defendant's true name, address, telephone number, e-mail address, and Media Access Control (“MAC”) address.[1]
Under Fed.R.Civ.P. 26(d), “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” unless authorized by a court order or agreement of the parties or when otherwise allowed under the Rules of Civil Procedure. A court order allowing expedited discovery will issue only upon a showing of good cause. Qwest Communications Int'l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D.Colo.2003); Pod-ners, LLC v. Northern Feed & Bean of Lucerne LLC, 204 F.R.D. 675, 676 (D.Colo.2002).
Here, Plaintiffs argue that their immediate need of the data in the subscriber activity logs establishes good cause. They indicate that ISPs such as Adelphia typically keep these logs for brief periods of time before erasing the data they contain. Plaintiffs might never identify the Defendants without obtaining access to the data contained in the logs. (See Whitehead Decl., ¶ 22).
Under these circumstances, Plaintiffs have established good cause. Good cause exists where the evidence sought “may be consumed or destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation.” Qwest, 213 F.R.D. at 419. See also Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R .D. 273, 276 (N.D.Cal.2002) (Good cause exists where “the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party”).
However, given the fact that Plaintiffs' Application was ex parte, Plaintiffs should serve a copy of this Order along with the subpoena. Further, Adelphia may move to quash within ten days of being served with the subpoena.
*2 Accordingly, it is ORDERED:
1. Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery, filed October 26, 2005, is granted. Plaintiffs may serve a Rule 45 subpoena upon Adelphia Communications Corp. that seeks information sufficient to identify each Defendant's true name, address, telephone number, e-mail address, and Media Access Control address.
2. Any information disclosed to Plaintiffs in response to the subpoena may be used by Plaintiffs solely for the purpose of protecting Plaintiffs' rights under the Copyright Act as set forth in the Complaint.
3. Plaintiffs' shall serve Adelphia Communications Corp. with a copy of this Order along with the subpoena.
4. If Adelphia Communications Corp. wishes to move to quash the subpoena, it must do so within ten days of being served with it.
5. This Order is made pursuant to 47 U.S.C. § 551(c)(2)(B). Adelphia Communications Corp. must notify each Defendant, whose information it provides to Plaintiffs, of this Order.