Intellectual Property | Copyright Infringement | Technology | Software

What is a motion for expedited discovery in federal court?

Dec 20th, 2017 | By | Category: Bittorrent Defense

Federal Court Torrent Law – From Strike 3 Holdings, LLC case

how to defend a torrrent lawsuit


This blog discusses the MOTION FOR EXPEDITED DISCOVERY that often occurs in Torrent illegal downloading cases.  This is general legal information only and not legal advice.  A motion to expedite discovery is basically a way for Plaintiff attorneys (often defending music, software, movie companies) to get court permission to send a subpoena to your internet service provider (ISP) seeking to locate your name and identity so that (potentially) your name can be added to a federal court lawsuit.  Once the Plaintiff learns your identity, Defendants still often have a good chance to settle their copyright infringement claims before their name is officially added to the lawsuit (by way of amendment) and before it has a chance to become a public record.  We help litigants defend in these types of cases.


Early Discovery

The law in this case is pulled from a Federal Court Strike 3 Holdings, LLC lawsuit over adult pornography.

In federal court:
“A party may not seek discovery from any source before the Rule 26(f) conference unless that party first obtains a stipulation or court order permitting early discovery. Fed. R. Civ. P. 26(d)(1).”
What the Plaintiff lawyers do in Torrent lawsuits, is they seek to learn your identity by sending a subpoena to your ISP.  The subpoena seeks your name and address and potentially other personal information.  To do this, they need to seek a court order, and so they FILE A MOTION to seek court approval to send the subpoena.  As the Court noted in the Strike 3 case cited below:
“Courts in the Ninth Circuit apply the “good cause” standard in deciding whether to permit early discovery. Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 274 (N.D. Cal. 2002) (adopting the conventional standard of “good cause” in evaluating a request for expedited discovery). Good cause exists “where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.”  Good cause for expedited discovery has been found in cases involving claims of infringement and unfair competition or in cases where the plaintiff seeks a preliminary injunction.  In infringement cases, expedited discovery is frequently limited to allowing plaintiffs to identify Doe defendants.
See UMG Recordings, Inc. v. Doe, 2008 (N.D. Cal. Sept. 4, 2008) (granting leave to take expedited discovery for documents that would reveal the identity and contact information for each Doe defendant).
District courts in the Ninth Circuit apply a three-factor test when considering motions for expedited discovery to identify certain defendants.
See Columbia Ins. Co. v., 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
First, the plaintiff should “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.”
Second, the plaintiff must describe “all previous steps taken to locate the elusive defendant” to ensure that plaintiff has made a good faith effort to identify the defendant.
Third, plaintiff should establish that its lawsuit could withstand a motion to dismiss. Id.

The third factor is whether or not a Plaintiff can withstand a motion to dismiss (discussed below).

Whether Plaintiff Can Withstand a Motion to Dismiss

“A plaintiff who claims copyright infringement must show:
(1) ownership of a valid copyright;
(2) that the defendant violated the copyright owner’s exclusive rights under the Copyright Act.” 
To prove a claim of direct copyright infringement,
“a plaintiff must show that he owns the copyright and that the defendant himself violated one or more of the plaintiff’s exclusive rights under the Copyright Act.”
Plaintiff provides evidence that it is the exclusive rights holder of the copyrighted works at issue.  Plaintiff alleges that between June 12, 2017 and October 13, 2017,  Defendant infringed Plaintiff’s copyrighted work by using the BitTorrent file distribution network.  Plaintiff further alleges that it did not permit or consent to Defendant’s copying or distribution of this work.   Accordingly, Plaintiff has alleged the prima facie elements of direct copyright infringement and could withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 579-80.
Citations pulled from Strike 3 Holdings, LLC v. Doe, No. 17 CV2317-JAH (BLM) (S.D. Cal. Dec. 14, 2017).

Court Order – Granting the Plaintiff’s motion for expedited discovery to serve a subpoena on ISP

In this case, the Court GRANTED the motion for expedited discovery (which is fairly typical in P2P file sharing cases).  Here is what the Court ordered in this ONE SIDED hearing:
“Having found good cause, the Court GRANTS Plaintiff’s motion for expedited discovery. For the foregoing reasons, it is hereby ordered that:
1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45, on Time Warner Cable (Spectrum) that seeks only the true name and address of Doe Plaintiff may not subpoena additional information;
2. Plaintiff may only use the disclosed information for the purpose of protecting its rights in pursuing this litigation;
3. Within fourteen (14) calendar days after service of the subpoena, Time Warner Cable (Spectrum) shall notify the subscriber that its identity has been subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed shall have thirty (30) calendar days from the date of such notice to challenge the disclosure by filing an appropriate pleading with this Court contesting the subpoena;
4. If Time Warner Cable (Spectrum) wishes to move to quash the subpoena, it shall do so before the return date of the subpoena. The return date of the subpoena must allow for at least forty-five (45) days from service to production. If a motion to quash or other customer challenge is brought, Time Warner Cable (Spectrum) shall preserve the information sought by Plaintiff in the subpoena pending resolution of such motion or challenge;
5. Plaintiff shall serve a copy of this Order with any subpoena obtained and served pursuant to this Order to Time Warner Cable (Spectrum). Time Warner Cable (Spectrum), in turn, must provide a copy of this Order along with the required notice to the subscriber whose identity is sought pursuant to this Order.
This is typical of what a federal court order might look like in a torrent file sharing lawsuit.

Contact a Torrent Defense Lawyer

We can help individuals, fraternities, and other business organizations defend against charges of illegal copyright infringement.  Call us at (877) 276-5084.  We have helped a large number of Defendants defend against charges of illegal movie sharing.  To learn more about Strike 3 Holding cases click here.
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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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