Case 1:12-cv-06539-JBS-KMW Document 9 Filed 05/15/13 Page 1 of 9 PageID: 63

[Doc. Nos. 5, 7] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

BATTLE FORCE, LLC, Plaintiff, Civil No. 12-6539-JBS-KMW v. JOHN DOES 1-39, Defendants. ORDER THIS MATTER has come to the Court by way of Plaintiff Battle Force, LLCs (Plaintiff) [Doc. No. Doe motion 5] and for leave to The to take

expedited declaration

discovery of

motion No. 7].

strike Court

non-party

John

[Doc.

considered the submissions pursuant to FED. R. CIV. P. 78; and for the reasons stated below, the motion for leave to take expedited discovery is granted in part and denied in part, and the motion to strike the declaration of non-party John Doe is granted. Background This action involves the alleged illegal distribution of Plaintiffs copyrighted work, the Motion Picture Battle Force (the Work). Plaintiff alleges that each of the thirty-nine

John Doe defendants used an internet file sharing protocol

1

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called BitTorrent to copy and reproduce the Work without authorization. On October 17, 2012, Plaintiff filed a Complaint

against thirty-nine John Doe defendants that Plaintiff identified by IP address only, alleging that Defendants infringed on Plaintiffs copyright registration by utilizing an online media distribution system to reproduce and distribute to the public, including by making available for distribution to others, the [Work]. 1). Plaintiff now seeks to conduct discovery prior to a Rule 26(f) conference in order to ascertain the identity of each John Doe defendant. Specifically, Plaintiff seeks to serve (Compl. 12, Document Number (Doc No.)

subpoenas on internet service providers (ISPs) which would require the ISPs to disclose the identities of the account holders of each IP address that has been identified by Plaintiff as having allegedly infringed Plaintiffs copyright, including the account holders names and contact information. An

anonymous John Doe filed a declaration to refute, alleging inter alia that joinder of the John Doe defendants inappropriate in this matter. (Doc. No. 6). is

Plaintiff seeks to

strike the anonymous declaration.

The Court has not considered

the anonymous declaration filed by the John Doe as part of its

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consideration of Plaintiffs motion for leave to seek expedited discovery.1 Discussion Pursuant to Rule 26 of the Federal Rules of Civil Procedure, [a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except . . . by court order. FED. R. CIV. P. 26(d)(1).

Generally, courts considering motions for leave to serve expedited discovery requests to ascertain the identity of John Doe defendants in cases similar to this matter involving internet copyright infringement apply the good cause test. Malibu Media, LLC v. John Does 1-11, No. 12-7615, 2013 U.S. Dist. LEXIS 26217, at *4-5 (D.N.J. Feb. 26, 2013) (internal citations omitted).
1

Good cause exists where the need for

Rule 11 of the Federal Rules of Civil Procedure requires that [e]very pleading, written motion, and other paper must be signed by at least one attorney of record . . . or by a party personally if the party is unrepresented. The paper must state the signers address, e-mail address, and telephone number. FED. R. CIV. P. 11(a). Further, Rule 11 provides that [t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorneys or partys attention. Id. (emphasis added). The author of the anonymous filing, John Doe, has entered his signature as John Doe and has failed to provide a real name, address or telephone number. Exquisite Multimedia Inc. v. Does 1-146, No. 12-0107, 2012 U.S. Dist. LEXIS 134446, at *2 (D. Ariz. Sept. 20, 2012) (striking the anonymous filing of a John Doe movant pursuant to FED. R. CIV. P. 11); see also K-Beech, Inc. v. Does 1-29, 826 F. Supp. 2d 903 (W.D.N.C. 2011) (striking anonymous John Does motion to dismiss pursuant to Rule 11(a) of the Federal Rules of Civil Procedure). The Court notes that [t]he identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity, and further notes that John Doe has not sought the permission of the Court to file document anonymously. Exquisite Multimedia Inc., 2012 U.S. Dist. LEXIS 134446, at *2. Therefore, Plaintiffs motion to strike the anonymous statement of John Doe is hereby granted. 3

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expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. at *5 (quoting Am. Legalnet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D. Cal. 2009)). Courts in this District have denied, at least in part, requests such as the request sought here for two reasons. First, courts have found that the joinder of numerous John Doe defendants, such as the thirty-nine John Doe defendants joined herein, is inappropriate because the purported instances of allegedly unlawful distribution are not necessarily part of the same transaction. See Malibu Media, LLC, 2013 U.S. Dist. LEXIS Id.

26217, at *5-6; see also Patrick Collins, Inc. v. John Does 143, No. 12-3908, 2013 U.S. Dist. LEXIS 46369 (D.N.J. Feb. 15, 2013) (holding that all claims against all defendants except John Doe 1 are severed and dismissed without prejudice and that all subpoenas issued to ISPs for all defendants other than John Doe 1 will be quashed); Third Degree Films, Inc. v. John Does 110, No. 12-5817, 2013 U.S. Dist. LEXIS 27273 (D.N.J. Jan. 17, 2013) (denying without prejudice plaintiffs motion for leave to seek expedited discovery in part because joinder of all John Doe defendants was inappropriate); Amselfilm Prod. GMBH & Co. KG v. Swarm 6A6DC, No. 12-3865, 2012 U.S. Dist. LEXIS 186476 (D.N.J. Oct. 10, 2012) (ordering that all claims against all defendants
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except John Doe 1 be severed and dismissed without prejudice to re-file). The second reason courts in this District have denied

requests such as the Plaintiffs request here is that the sought-after ISP information may not actually reveal the identity of the alleged infringer. With respect to the first issue, while this Court is not in a position to dismiss claims at this time, this Court is mindful of the Honorable Faith S. Hochbergs, U.S.D.J., reasoning in Amselfilm Productions regarding the inappropriate joinder of John Doe defendants. Consequently, the request to

conduct expedited discovery as to John Does 2-39 is hereby denied without prejudice. However, the Court will address the request to conduct expedited discovery as to John Doe 1. This Court is also of the

opinion that to resolve Plaintiffs request for expedited discovery, it must balance Plaintiffs need for discovery against the privacy interests of the subscriber. Malibu Media,

LLC v. John Does 1-18, No. 12-7643, at *7 (D.N.J. Mar. 22, 2013). Plaintiff has only been able to identify each John Doe Therefore, with respect to

defendant by an IP address.

Plaintiffs need for discovery, the Court recognizes that without the discovery sought, Plaintiff will be unable to discover the identity of the alleged infringer.
5

However, when

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looking to the privacy interests of the subscriber, the Court also recognizes that Plaintiffs request to conduct expedited discovery, by serving subpoenas on ISPs to obtain the identity of the account holder of the allegedly infringing IP address, may not actually reveal the alleged infringer. Notably, in a

similar case in which plaintiff sought this same expedited discovery, the Honorable Mark Falk, U.S.M.J., denied the request for expedited discovery without prejudice because [g]ranting Plaintiffs motion has the potential to permit Plaintiff to obtain detailed personal information of innocent individuals. This could subject an innocent individual to an unjustified burden. at *5. Third Degree Films, Inc., 2013 U.S. Dist. LEXIS 27273,

Specifically, Judge Falk explained that [i]n some

instances, the IP subscriber and the John Doe defendant may not be the same individual because the infringer might be someone other than the subscriber; for instance, someone in the subscribers household, a visitor to the subscribers home or even someone in the vicinity that gains access to the network. Id. The fact that the IP account holder and the alleged infringer may not be the same person necessarily means that it is likely that Plaintiff will have to go beyond simply subpoenaing the ISPs in order to ascertain the identity of John
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Doe 1.

Once Plaintiff gets the identity of the account holder

from the ISP, Plaintiff then must determine whether that IP account holder was actually the individual who accessed the Swarm and allegedly infringed on Plaintiffs copyright. Therefore, the discovery sought by Plaintiff, while relatively limited at this time, will likely expand in order for Plaintiff to identify John Doe 1. The burdens associated with the

potentially expansive and intrusive discovery that Plaintiff may need to propound in order to obtain the John Doe defendants identities likely would outweigh Plaintiffs need for expedited discovery. *11. Malibu Media, LLC, 2013 U.S. Dist. LEXIS 26217, at

For the reasons more fully set forth in Malibu Media, LLC,

to protect the privacy interest of John Doe 1, the Court will grant Plaintiffs request for leave to take expedited discovery in the following form, with the following limitations: Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 on the ISP that provided internet service to the defendant designated by IP address as John Doe 1. The subpoena may seek the name and address only of the account holder of such IP address. Under no circumstances is Plaintiff permitted to seek or obtain the telephone number(s) or email address(es) of this individual, or seek to obtain information about any potential John Doe defendant other than John Doe 1. Plaintiff shall attach a copy of this Order to the subpoena.
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The ISP shall provide the internet subscriber with a copy of this Order and a copy of the subpoena received from Plaintiff. Upon receipt of this Order and the subpoena, the internet subscriber shall have twenty-one (21) days to move to quash the subpoena or move in the alternative for a protective order.2 After providing the subscriber with the subpoena and a copy of this Order, the ISP shall not provide responsive information to Plaintiff until the latter of the expiration of twenty-one (21) days or resolution of any motion to quash or for a protective order. Information obtained from the ISP shall only be used for the purpose of this litigation and Plaintiff shall be prepared to provide copies of the responsive information to the specific defendant who may enter an appearance in this case.3 All other aspects of Plaintiffs motion for expedited discovery are denied. For the foregoing reasons, IT IS on this 15th day of May, 2013 hereby ORDERED that Plaintiffs motion for leave to take expedited discovery [Doc. No. 5] is hereby granted in part and denied in part; and it is further

Nothing in this Order shall be construed as limiting the ISPs right to oppose the subpoena on its own behalf. 3 In the event that Plaintiff files an Amended Complaint to substitute a John Doe defendant with the proper name of a defendant, then it shall ensure that it has a factual basis for the assertion that such defendant engaged in the alleged acts. By permitting this discovery, the Court is not finding that Plaintiff may rely solely on the fact that the named defendant is the person identified as the subscriber associated with the IP address to prove that such person engaged in the acts set forth in the Complaint. 8

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ORDERED that Plaintiffs motion to strike [Doc. No. 7] is hereby granted. s/ Karen M. Williams KAREN M. WILLIAMS United States Magistrate Judge cc: Hon. Jerome B. Simandle