Opinion
Case No. 11-1050 SC.
June 10, 2011
ORDER GRANTING REQUEST FOR LEAVE TO TAKE LIMITED EARLY DISCOVERY
I. INTRODUCTION
On March 7, 2011, Plaintiffs DFSB Kollective Co. Ltd, et al. ("Plaintiffs") filed a Complaint against a defendant Plaintiffs identify as Michael Jenpoo a/k/a Mike Jenpoo and doing business as jenpoo.com, as well as ten unnamed defendants (collectively, "Defendants"), alleging copyright infringement. ECF No. 1 ("Compl."). Plaintiffs seek leave to take limited discovery prior to the required Rule 26 conference in order to identify Defendants. ECF No. 10 ("Ex Parte App."). For the following reasons, the Court GRANTS Plaintiffs' Application.
II. BACKGROUND
Plaintiffs are Korean entities that develop, market, and distribute music — specifically, Korean pop music. Compl. ¶ 2. Plaintiffs allege Defendants operate a website, jenpoo.com, providing fans of Korean pop music with "a one-stop shop for infringing material." Defendants allegedly "post, organize, search for, identify, collect and index links to infringing material that is available on third-party websites," and Plaintiffs claim that through this activity, Defendants have contributorily and vicariously infringed Plaintiffs' registered copyrighted works. Id. ¶¶ 2-3, 21. Defendants allegedly use accounts on the social networking sites Facebook, Twitter, and Myspace — as well as the online video community YouTube — to advertise and drive traffic to jenpoo.com. Id. ¶ 27. Defendants allegedly profit through this scheme by selling advertising on jenpoo.com. Id. ¶ 30.
Plaintiffs surmise that "Mike Jenpoo" is a fictitious name. Mot. at 7. Plaintiffs allege that despite spending "a considerable amount of time and resources tracing all known legal names and contact information for Defendant," they have not identified Defendants' names or contact information. Drey Decl. ¶ 3. Plaintiffs have identified a number of accounts associated with Defendants, including
Nicole Drey ("Drey"), attorney for Plaintiffs, filed a declaration in support of Plaintiffs' Ex Parte Application. ECF No. 10-1.
the website located at jenpoo.com; the Facebook IDs. "MikeJenpoo" and "Jenpoo"; the Twitter IDs "j3npoo" and "JenpooMusic"; the Google AdSense ID "pub-9402091111087975"; the YouTube IDs "MrJenpoo" and "Jenpooable"; the Blogspot blog jenpee.blogspot.com; the Blogger User ID "Jenpoo"; the Myspace account "Mike Jenpoo"; the Digital Point User ID "MikeJenpoo"; and the email addresses "woobzar123@gmail.com," "mikejenpoo@gmail.com," "wfbbq@gmail.com," and "weij ieqing1988@yahoo.com.cn."Id.
Softlayer Technologies ("Softlayer") is an Internet Service Provider ("ISP") allegedly hosting jenpoo.com, and HostGator.com LLC ("HostGator") is an ISP "which at one point hosted the website located at jenpoo.com." Id. ¶¶ 8, 15. Digital Point Solutions ("DPS") is allegedly an Internet software developer and ISP which operates the forums located at forums.digitalpoint.com.Id. ¶ 14. Plaintiffs attach evidence that appears to show a user, "MikeJenpoo," discussed advertising on jenpoo.com in these online forums. Id. Ex. C ("Pls.' Web Research") at 155.
Plaintiff seeks leave to file a Rule 45 third-party subpoena on eight third-party service providers: SoftLayer, Facebook, Twitter, Google, MySpace, DPS, HostGator, and GoDaddy ("the third-party service providers"), as well as "other necessary entities that may be uncovered during discovery." Ex Parte App. At 2.
III. LEGAL STANDARD
Generally, a party may not initiate discovery before the parties have met and conferred pursuant to Federal Rule of Civil Procedure 26(f). However, a court may authorize earlier discovery "for the convenience of parties and witnesses and in the interests of justice." Fed.R.Civ.P. 26(d). The requesting party must demonstrate good cause for earlier discovery. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).
According to the Ninth Circuit:
[W]here the identity of alleged defendants will not be known prior to the filing of a complaint[,] . . . the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). For leave to conduct discovery to identify a Doe defendant, the moving party must: (1) identify the defendant with enough specificity to allow the Court to determine whether the defendant is a real person or entity who could be sued in federal court; (2) recount the steps taken to locate the defendant; (3) show that its action could survive a motion to dismiss; and (4) file a request for discovery with the Court identifying the 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. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
IV. DISCUSSION
A. Early Limited Discovery
The Court finds that Plaintiff has shown good cause for limited expedited discovery. Expedited discovery is appropriate because ISPs typically retain subscriber logs for only a short period of time before destroying the information. A third-party subpoena appears to be the only way Plaintiffs can identify Defendants, and Plaintiffs must identify them in order to effect service of process.
The Court finds that Plaintiffs have satisfied the four-factor test outlined in seescandy.com for leave to conduct discovery to identify Defendants. Plaintiff has identified Defendants with specificity by identifying specific e-mail addresses, user IDs, and account numbers. They have hired investigators and presented the Court with the results of these investigations. They have established that their Complaint is likely to survive a motion to dismiss. Finally, with a few exceptions, they have demonstrated that there is a reasonable likelihood that discovery process served on the third-party service providers will yield identifying information.
However, the Court does not grant the broad order Plaintiffs seek. The Court finds that Plaintiffs should be permitted to serve subpoenas on SoftLayer, Facebook, Twitter, Google, MySpace, DPS, and HostGator. The Court denies Plaintiffs' request to serve subpoenas on MySpace and GoDaddy because Plaintiffs have failed to explain the connection between these entities and Defendants. As to MySpace, the only connection between MySpace and Defendants is the existence of a MySpace account named "Mike Jenpoo." Whereas the evidence submitted tends to show that the related Twitter, Facebook, and YouTube accounts were used to drive traffic to jenpoo.com, the MySpace account appears dormant and contains no references to jenpoo.com.
While Plaintiffs seek discovery into the contact information associated with a number of e-mail addresses, they do not explain how Plaintiffs came to suspect the holders of these e-mail addresses are related to jenpoo.com. Having reviewed the evidence submitted, only two — "mikejenpoo@gmail.com" and "wfbbq@gmail.com" — appear connected to the allegedly infringing activity. The Court limits the scope of the subpoenas accordingly.
Plaintiffs seek a subpoena commanding the third-party providers to provide the names, addresses, phone numbers, the "identity of Defendant's financial institution[s]," and other e-mail addresses and user IDs. See ECF No. ("Prop. Order"). The Court denies Plaintiffs' request to compel the ISPs to identify the financial institutions associated with these accounts: the subpoena shall only command the production of the names, addresses, phone numbers, e-mail addresses, and physical addresses associated with the accounts.
Finally, Plaintiffs seek an order that would allow Plaintiffs to subpoena not only the named third-party service providers, but also "other necessary entities that may be uncovered during discovery." The Court will not issue such an open-ended order — Plaintiffs may only subpeona the above-mentioned six third-party service providers.
B. Opportunity to Move to Quash or Modify
Federal Rule of Civil Procedure 45 provides that a subpoena may be quashed or modified if it requires disclosure of privileged or "other protected matter," or if it subjects a person to undue burden. Fed.R.Civ.P. 45(c)(3)(A)(iii) and (iv). As such, the third-party providers shall be required to provide notice of the subpoena to the subscribers so that they have the opportunity to move to quash or modify.
C. Request for Enlargement of Time
Plaintiffs additionally seek a ninety-day extension to effect service of process on Defendants, citing "Defendant's deliberate concealment of his location and evasion of service, not to mention his likely use of a fictitious identity." Mot. at 3. The Court finds that good cause exists for this enlargement of time, and GRANTS the request.
V. CONCLUSION
For good cause shown, Plaintiffs' Ex Parte Application to Take Early Limited Discovery is GRANTED. Plaintiffs may serve a Rule 45 subpoena on the following entities:
1. SoftLayer Technologies, Inc., formerly The Planet;
2. Facebook;
3. Twitter, Inc.;
4. Google Inc.;
5. Digital Point Solutions; and
6. HostGator.com LLC;
These subpoenas must be limited to the production of documents sufficient to identify the names, addresses, telephone numbers, and e-mail addresses associated with Michael Jenpoo or Mike Jenpoo; the user IDs jenpoo, j3npoo, JenpooMusic, pub-9402091111087975, MrJenpoo, Jenpooable, MikeJenpoo; the website located at jenpoo.com, the blog located at jenpee.blogspot.com; and the e-mail addresses "mikejenpoo@gmail.com" and "wfbbq@gmail.com."
The third-party service providers shall, in turn, serve a copy of the subpoena and a copy of this Order upon its relevant subscribers within ten (10) days of its receipt of the subpoena. The subscribers shall then have fifteen (15) days from the date of service upon them to file any motions to quash or modify. If that 15-day period elapses without a subscriber filing a motion to quash or modify, the third-party service providers shall have ten (10) days to produce that subscriber's name, address, phone number, and e-mail address to Plaintiffs pursuant to the subpoena.
IT IS SO ORDERED.