Free Order on Ex Parte Application - District Court of California - California

Case 5:07-cv-04849-JW

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Filed 10/12/2007

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1 2 3 4 5 6 7 8 9 10 Warner Brothers Records, Inc., et al., Plaintiffs, v. 12 John Doe, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / Plaintiffs move ex parte for leave to take immediate discovery to obtain the identity of Defendant Doe, an alleged copyright infringer. Plaintiffs allege that they tracked the Internet Protocol ("IP") address associated with Defendant's activity online, and that the tracking showed Defendant provided copyrighted files for others to download. The IP address associated with Defendant's activity online on January 26, 2007 is: 138.202.222.153. (See Complaint, Ex. A, Docket Item No. 1.) Although parties must generally confer prior to seeking expedited discovery, that requirement may be dispensed if good cause is shown. See Fed. R. Civ. P. 26(d); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). When the identity of a defendant is not known prior to filing a complaint, the court should give the plaintiff an opportunity to identify the defendant through discovery, "unless it is clear that discovery would not uncover [the defendant's] identity[], or that the complaint should be dismissed on other grounds." Gillespie v. Civletti, 629 F.2d 637, 642 (9th Cir. 1980.) Although the Family Education Rights and Privacy Act IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 07-04849 JW ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO TAKE IMMEDIATE DISCOVERY

United States District Court

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For the Northern District of California

Case 5:07-cv-04849-JW

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Filed 10/12/2007

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generally prohibits disclosure of certain records by federally-funded education institutions, it provides that information can be disclosed pursuant to court order. 20 U.S.C. § 1232g(b)(2)(B). Plaintiffs contend that they have evidence to make a prima facie case of copyright infringement against Defendant, and that they have identified the Internet Service Provider ("ISP") that provided Internet access to Defendant. (Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery, Docket Item No. 4.) The ISP has subscriber activity log files that may allow Plaintiffs to identify Defendant by IP address. Plaintiffs further contend that the records kept by ISPs are regularly destroyed, sometimes on a daily or weekly basis. Thus, the Court finds that Plaintiffs have demonstrated good cause for expedited discovery. (Id.) Accordingly, the Court GRANTS Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery. Plaintiffs shall serve immediate discovery on the University of San Francisco to obtain the identity of Defendant by serving a Rule 45 subpoena that seeks documents identifying Defendant, including Defendant's name, current (and permanent) address, telephone number, and email address. This order is limited to the discovery of information associated with the IP address, 138.202.222.153 on March 26, 2007 at 17:47:51 EST. The disclosure of this information is ordered consistent with the obligations of 20 U.S.C. § 1232g(b)(2)(B). Under that provision, the University of San Francisco shall notify students subject to the subpoena and their parents "in advance of the compliance" with the subpoena. Id. If the University of San Francisco and Defendant wishes to move to quash the subpoena, they shall do so before the return date of the subpoena. Plaintiff shall use the information disclosed in response to the Rule 45 subpoena solely in connection with this case and for the purposes of protecting Plaintiffs' rights under the Copyright Act.

United States District Court

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For the Northern District of California

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Dated: October 12, 2007 JAMES WARE United States District Judge

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Case 5:07-cv-04849-JW

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Filed 10/12/2007

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Matthew Franklin Jaksa [email protected]

Dated: October 12, 2007

Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

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United States District Court

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For the Northern District of California

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