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1 | BENJAMIN J. FOX (CA SBN 193374 GIANCARLO UREY (CA SBN 267069) 2 | MORRISON & FOERSTER LLP 555 West Fifth Street 3 | Los Angeles, California 90013-1024 Telephone: 213.892.5200 4 || Facsimile: 213.892.5454 BFox @mofo.com 5 | GUrey@mofo.com 6 cee s for Non-P - RIZON ONLINE LLC 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | INGENUITY LLC, No. 2:12-cv-8333-ODW (JCx) 12 Plaintiff, And Related Case Nos.: 2:12-cv-6636-ODW (JCx 13 Vv. 2:12-cv-6669-ODW (JCx 2:12-cv-6662-ODW (JCx 14 | JOHN DOE, 2:12-cv-6668-ODW (JCx 15 Defendant. DECLARATION OF SEAN MORIARTY FROM VERIZON ONLINE, LLC RE: SUBPOENAS RE ‘HOLDINGS LITIGATION
Date: March 11, 2013 Time: 1:30 p.m Court: Hon. Otis D. Wright
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I, Sean Moriarity, state and declare:
1. Tama Manager of IP Legal Compliance for Verizon Online LLC and have served in that capacity since 2008. I have personal knowledge of the facts stated herein, and if called upon to do so, I could testify competently to them.
2. My job responsibilities include assisting Verizon in responding to third-party subpoenas issued in civil litigation. During the last two years, a significant portion of my time has been devoted to responding to subpoenas issued by plaintiffs who allege to be owners of sexually explicit films and are seeking the personal identifying information for Verizon’s Internet subscribers based on a list of IP Addresses. Other Verizon employees (including in-house counsel and other staff) also have been required to expend significant time and effort in responding to these types of subpoenas and the legal and privacy issues that they raise.
3. On or about September 6, 2012, Verizon received subpoenas from plaintiff AF Holdings in AF Holdings v. John Doe, C.D. Cal. Case No. 12-cv-6669 and AF Holdings v. John Doe, C.D. Cal. Case No. 12-cv-6636. True and correct copies of these subpoenas are attached hereto as Exhibit A and Exhibit B.
Verizon processed these subpoenas in the ordinary course.
4. Based on Verizon’s records, it does not appear that Verizon received from AF Holdings or its counsel a copy of the Court’s Order Vacating Prior Early Discovery Order and Order to Show Cause dated October 19, 2012, nor does it appear that Verizon received other form of notice that the subpoenas attached as Exhibits A and B had been withdrawn or were invalid. If Verizon had received such notice, we would not have processed these subpoenas for AF Holdings.
5. I have reviewed a declaration filed by Brett Gibbs in this litigation, dated February 19, 2013, in which Mr. Gibbs states:
Following receipt of the October 19,2012 Orders, I caused the Court’s October 19, 2012 Orders to be served on the registered agents for service of process of Verizon Online
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LLC to ensure that Verizon Online LLC had notice not to
respond to the subpoenas that had already been served. (Gibbs Decl. dated Feb. 19, 2013, at { 21 [Dkt. 50].) Again, based on Verizon’s records, this statement appears to be wrong.
6. Verizon released the information responsive to AF Holdings’ subpoenas in the cases identified above (case nos. 12-cv-6669 and 12-cv-6636) by fax to the Prenda law firm on November 7, 2012. If Verizon had received notice of the Court’s Order dated October 19, 2012, we would not have released these
records to Plaintiff.
I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct. Executed on March 11, 2013 in Arlington, Virginia.
By: ean Mori
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EXHIBIT A
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2) CT Corporation
TO: Subpoena Processing
Verizon Corporate Security
Service of Process Transmittal 09/05/2012
Number 52
Ta AN
2701 South Johnson Street, Custodian of Record, MC: TXD01613
San Angelo, TX 76904
RE: Process Served In tlinois
FOR: = Verizon Ontine LLC (Domestic State: DE)
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
TITLE OF ACTION: DOGUMENT(S) SERVER: COURT/AGENCY:
NATURE OF ACTION:
ON WHOM PROCESS WAS SERVED: DATE AND HOUR OF SERVICE: JVAISDICTION SERVED : APPEARANCE OR ANSWER DUE: ATTORNEY(S) / SENDER(3):
ACTION ITEMS:
SIGNED: PER: ADDRESS:
TELEPHONE:
AF Holdings LLC, Pltf. vs, John Doe, Dft, // To: Verizon Online LLC Letter, Order, Subpoena, Attachment(s)
Northern District of Ulinois - U.S. District Court - Eastern Division, IL Case # 212CVO6669DMGFMO
Subpoena - Email Records - Pertaining to IP Address 74 118,185.55 CT Corporation System, Chicago, IL
By Process Server on 09/05/2012 at 14:21
WWinais
10/08/12 at 10:00 a.m.
Paul Duffy Prenda Law, Inc. 161 N. Clark St. Suite 3200 Chicago, IL 60601 312-880-9160
SOP Papers with Transmittal, via Fed Ex 2 Day , 798909833134 SOP Papers with Transmittal, via Fax, Subpoena Processing 325-949-6916
CT Corporation System Thad DiBartelo
208 South LaSalle Street Suite 814
Chicago, IL 6g604 312-345-4336
Page lof 1/
Information displayed on thts transmittal fs far CT Corparation's record keeping purposed onty and 1s provided ta the recipient far quick reference. This information does not canstitute a legal opinion as to the nature of action, the amount of damages, the answer date, of any Infarmation contained in the documents themselves, Recipicnt is responsible for interpreting satd documents and for taking appropriate action. Signatures an certified mafl recelpts confirm receipt of package only, not contents,
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“enda Law..
Preeartecring Incellecrual Praporry
September 5, 2012
Via Hand Delivery
Re; AF Holdings LLC v, John Doe 2:12-cv-06669-DMG-FMO
Dear Custadian of Records:
Enclosed, please find a subpoena and attachment issued in the above-referenced matter, which is currently pending in the United States District Court for the Central District of California. Specifically, our client is requesting identifying information with respect to subscriber(s) who were associated with IP addresses controlled by your organization at a given date and time. In our subpoena, we have included the IP address, Time, and Time Zone in our search requests.
We regularly receive requests from Internet Service Providers for electronic copies of the enclosed documents, which we are pleased to fulfill. To receive these documents please e-mail your request to our office at the following e-mail address:
If you have any other questions or concerns regarding this request please direct them to the above e-mail address or feel frec to call our offices directly at (415) 325-5900. We will do everything in our power to minimize the burden imposed on your organization associated with our request.
Sincerely,
Prada Law Ine, Subjocna "Jeam
Fax: 312.893.5677 161 NW Clark St., Suite 3200, Chicago, IL 60601 Tels 312.880.9160
wwowowefightpiracy.com
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2 | 4 5 6 ra 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12] AF HOLDINGS, LLC, ) NO. CV 12-6669 DMG (FMOx) ) 13 ) Plaintiff, ) 14 }) ORDER Re: APPLICATION FOR LEAVE TO Vv. ) CONDUCT EXPEDITED DISCOVERY 15 } JOHN DOE, } 16 ] Defendant. 17 ) 18 19 The court has reviewed and considered plaintiffs Ex Parte Application for Leave to Take
20 || Expedited Discovery ("Application"), and concludes that oral argumentis not necessary to resolve 21] this matter. See Fed. R. Civ. P. 78; Local Rule 7-15; Willis v. Pac. Maritime Ass'n, 244 F.3d 675, 22 || 684 n. 2 (9th Cir, 2001, as amended Mar. 27, 2001).
23 BACKGROUND 24 On August 2, 2012, plaintiff filed a Complaint against John Doe (“Doe defendant’) for direct
25 || and contributory copyright infringement and negligence, alleging that Doe defendant used a peer- 26] to-peer file-sharing protoccl to download and upload plaintiffs copyrighted work without 27|| permission. (Complaint at Tf 1 & 22: Application at 1-2 & 10-11). Plaintiff does not know Doe
281 defendant's name, but has identified Doe defendant by a unique Internet Protocol ("IP") address
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assigned to Doe defendant on the date and time of the alleged infringing activity. (Application at 1-2; Declaration of Peter Hansmeier in Support of Plaintiff's Ex Parte Application for Leave to to Take Expedited Discovery (“Hansmeier Decl,”) at {J 16-27).
On August 24, 2012, plaintiff filed the instant Application to conduct discovery prior to a Rule 26(f) conference to uncover the identity of the Doe defendant, (Application at 1). Specifically, plaintiffs Application seeks leave to serve Rule 45 subpoenas on the Internet Service Provider ("ISP") that assigned Doe defendant's IP address and any related intermediary ISPs.
(See Application at 1; Hansmeier Decl. at J] 28 & 30: [Proposed] Order Granting Plaintiff's Ex
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Parte Application for Leave to Take Expedited Discovery (“Proposed Order") at 1-2). The 107 subpoenas request identifying information concerning Doe defendant, i.e., Doe defendant's name, 11] address, telephone number, e-mail address, and Media Access Control ("MAC") address. (See 12] Application at 4-7; Hansmeier Decl. at 7 28: Proposed Order at 1-2).
1 3 The court considers the instant Application in light of the good cause standard for expedited 14] discovery and First Amendment privacy concerns. See UMG Recordings, Inc. v. Does 1-4, 2006 15] WL 1343597, at *1 (N.D. Cal. 2006); Arista Records LLC v. Does 1-43, 2007 WL 4538697, *1
16}| (S.D, Cal. 2007); Sony Music Entm'tinc. v. Does 1-40, 326 F.Supp.2d 556, 564 (S.D.N.Y. 2004).
17 DISCUSSION 18} 1. GOOD CAUSE. 19 Under Rule 26(d), formal discovery is generally allowed only after "the parties have
20] conferred as required by Rule 26(f).". Fed. R. Civ. P. 26(d). However, courts may permit 211 expedited discovery before the Rule 26(f) conference upon a showing of good cause. Semitool, 22|| Inc. v. Tokyo Electron Am., Inc., 208 F.R.D, 273, 275-76 (N.D. Cal. 2002). Good cause exists 23] “where the need for expedited discovery, in consideration of the administration of justice, 24] outweighs the prejudice to the responding party.” Id. at 276.
25 Here, there is good cause to grant plaintiff eave to conduct expedited discovery. First, 26 | plaintiff alleges that Doe defendant copied plaintiffs copyrighted work without permission, 27] (Application at 1-2 & 10-11), and allegations of copyright infringement necessarily involve
28 | irreparable harm to plaintiff. Health Ins. Ass'n. of Am, v. Novelli, 211 F.Supp.2d 23, 28 (D.D.C.
2
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2002) (“In copyright infringement cases, a copyright holder may be presumed to suffer irreparable
2|| harm as a matter of law when his right to the exclusive use of copyrighted material is invaded[.]”) 3] (internal quotation marks, brackets and citation omitted); see Arista Records, 2007 WL 4538697, 4! *1 (finding good cause to grant plaintifis expedited discovery of Doe defendants’ identity and 5| contact information based in part on plaintiffs’ allegations of copyright infringement); Capitol 6|| Records, Inc. v. Doe, 2007 WL 2429830, at *1 (S.D. Cal. 2007) (same); UMG Recordings, 2006 7], WL 1343597, at *1 (same). 8 Second, there is a risk that Doe defendant’s ISPs will not preserve the information that 9] plaintiff seeks. (Application at 5-6; Hansmeier Decl. at J 29); see Arista Records, 2007 WL 10] 4538697, *1 (finding good cause to grant plaintiffs expedited discovery of Doe defendants’ identity 11] and contact information in copyright infringement case based in part on "the danger that [the ISP] 12]| will nottong preserve the information that [plaintiffs seek[.]"); Capitol Records, 2007 WL 2429830, 13] at*1 (same); UMG Recordings, 2006 WL 1343597, at *1 (finding that "expedited discovery [of Doe 14] defendants’ identity and contact information] is appropriate because ISPs typically retain user 15] activity logs for only a limited period, ranging from as short as a few days to a few manths, before
16] erasing data.”).
17 Third, plaintiffs discovery request seeks the identity and contact information for Doe 418] defendant associated with a unique IP address on the date and time of the alleged infringing 19], activity, (see Application at 1-2 & 4-7; Hansmeier Decl. at ] 28; Proposed Order at 1-2), and thus 20] is narrowly tailored "so as not to exceed the minimum information required to advance th{e] lawsuit 21|| without prejudicing the [djefendants[.]” Arista Records, 2007 WL 4538697, *1 (finding good cause 22|| to grant plaintiffs expedited discovery of Doe defendants’ identity and contact information in 23 | copyright infringement case in part because the discovery request was “narrowly tailored . . . so 24| as notto exceed the minimum information required to advance this lawsuit without prejudicing the 25|| [djefendants’); see Capitol Records, 2007 WL 2429830, at *1 (same); UMG Recordings, 2006 WL 26 || 1343597, at*1 (N.D. Cal. 2006) (finding good cause to grant plaintiffs expedited discovery of Doe
27 || defendants’ names and contact information in copyright infringement case).
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Finally, without expedited discovery, plaintiff cannot identify Doe defendant, and thus
2] Cannot pursue its lawsuit to protect its copyrighted works from infringement, See Arista Records, 3 2007 WL 4538697, "1 (finding good cause to grant plaintiffs expedited discovery of Doe 4} defendants’ identity and contact information in copyright infringement case in part because "the S| expedited discovery requested will substantially contribute to moving this case forward[ and] . . 6} ., without such discovery, [p]laintiffs cannot identify the Doe [djefendants, and thus cannot pursue 7 | their lawsuit to protect their copyrighted works from infringement.”); see Capitol Records, 2007 WL 8] 2429830, at *1 (same); UMG Recordings, 2006 WL 1343597, at "1 (finding good cause to grant 9] plaintiffs expedited discovery where “[pjlaintiffs have no other way to obtain [Doe defendants’ 10] names and contact information], which is necessary to advance the lawsuit by enabling [plaintiffs 11] to effect service of process[, and where plostponing disclosure of information until the normal 12} course of discovery is not an option . . . because, without disclosure of [said] information, the 13}, litigation cannot proceed to that stage."). 14 Accordingly, good cause exists for granting plaintiff leave to conduct expedited discovery 15] of Doe defendant's identity and contact information. See Arista Records, 2007 WL 4538697, *1; 16 || Capitol Records, 2007 WL 2429830, at *1; UMG Recordings, 2006 WL 1343597, at “1; UMG 17 | Recordings v. John Doe, 2008 WL 2949427, at *1 (N.D. Cal. 2008). 18} fl. FIRST AMENDMENT. 19 A person who uses the Internet to download or distribute copyrighted material without 20] permission is entitled to "some level of First Amendment protection.” See Sony Music Entm't inc. 21} v_ Does 1-40, 326 F.Supp.2d 556, 564 (S.D.N.Y. 2004) (internal quotation marks and citation 22] omitted), see id. (“[T]he use of P2P file copying networks to download, distribute, or make 23] available for distribution copyrighted sound recordings, without permission, .. . qualifies as 24] speech, but only to a degree."), Accordingly, in balancing any First Amendment interest Doe 25 | defendant may possess in anonymous speech against the need for disclosure, courts consider 26} the following factors: (1) whether any of plaintiffs claims can withstand a motion to dismiss, see 27} Seescandy, 185 F.R.D. at 579-80: (2) the specificity of the discovery request, see id, at 578 & 580; 28 | Sony Music, 326 F.Supp.2d at 565; (3) the absence of alternative means to obtain the
4
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subpoenaed information, see Seescandy, 185 F.R.D. at 979; Sony Music, 326 F.Supp.2d at 565; (4) the need for the subpoenaed information to advance the claim, see Sony Music, 326 F.Supp.2d at 565; and (5) the speaker's expectation of privacy. See id,
Here, each of the five factors weighs in favor of disclosing Doe defendant's identifying infarmation in compliance with plaintiffs subpoena. First, plaintiff alleges sufficient facts to withstand a motion to dismiss on its copyright infringement claim. To withstand a motion to dismiss pursuant to Rule 12(b)(6), plaintiff must proffer "enough facts fo state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twornbly (Twombly), 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007): accord Ashcroft v. iqbal (Iqbal), 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is fiable for the misconduct alleged.” Iqbal, 556°U.S. at 678, 129 S.Ct. at 1949: Cook v. Brewer, 637 F.3d 1002, 1004 (Sth Cir. 2011). Although the
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plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do,” Twombly, 550 U.S, at 555, 127 S.Ct. at 1965; accord Iqbal, 556
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U.S. at678, 129 S.Ct. at 1949, “[s]pecific facts are not necessary; the [pleadings] need only give the defendant{s] fair notice of what the ... claimis and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200 (2007) (per curiam) (internal quotation marks and citations omitted); accord Twombly, 550 U.S. at 555, 127 S.Ct. at 1964. In considering whether ta dismiss a complaint, the court must accept the allegations of the complaint as true. Erickson, 551 U.S. at 93-94, 127 S.Ct. at 2200; Albright v. Oliver, 510 U.S. 266, 267, 114 S.Ct. B07, 810 (1994).
To establish copyright infringement under 17 U.S.C. § 101, atsea., ‘two elements must be
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proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work
that are original.” Feist Publ’n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296 (1991); see 17 U.S.C. 8§ 106(1) & (3)-(5) (a copyright owner has the exclusive right to
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reproduce, distribute, display and/or perform the copyrighted work). Here, plaintiff alleges it owns a valid copyright, (Complaint at {fl 18-19), and the results of plaintiffs forensic investigation show
that Doe defendant, using a specific IP address identified in plaintiffs Complaint, reproduced and
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distributed plaintiffs copyrighted work without plaintiffs permission. (See id. at J 22; Hansmeier
2| Decl. at fff] 16-27); Feist Publ’n, 499 U.S. at 361, 111 S.Ct. at 1296; 17 U.S.C. §§ 106(1) & (3)-(5). 3} Under the circumstances, plaintiffs allegations are sufficient to “give [Doe defendant) fair notice 4] of what the... claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93, 127 S.Ct. 5] at 2200. 6 Second, as previously discussed, see supra at § I., plaintiff here seeks identifying 7| information about a particular (SP subscriber, (e., the user of the IP addresses listed in plaintiffs 8| Complaint, based on specific times and dates when the alleged infringing activity took place. 9} (Application at 1-2; Hansmeier Decl. at J] 16-27); Sony Music, 326 F.Supp.2d at 566 (finding 10} plaintiffs’ need for disclosure outweighed Doe defendants’ First Amendment right to remain 11] anonymous in part because plaintiffs’ discovery request sought identifying information about 12] “particular [ISP] subscribers, based on the specific times and dates when (the infringing activity 13] allegedly took place].”) (citations omitted). In addition, the IP addresses were each traced to a 14] physical address located within the State of California, (Complaint at J 6), “which indicates that 15] the Court likely has jurisdiction over defendant{].” Seescandy, 185 F.R.D. at 579. In short, 16} plaintiff's “discovery requestis . . . sufficiently specific to establish reasonable likelinood that the 17} discovery request would lead to identifying information that would make possible service upon [a] 18] particular defendant[] who could be sued in federal court.” Sony Music, 326 F.Supp.2d at 566 19] (citations omitted); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 249 (N.D. It, 2011) 20] ("[Plaintiff]'s discovery request is sufficiently specific to establish reasonable likelinood that it will 21} lead to identifying information that would make service possible upon those Doe Defendants who 22 | could be sued in federal court(]” where plaintiff “seeks the identifying information for particular 23]| Internet users who allegedly downloaded their copyrighted material. . . at specific times and 24] dates[.]”). 25 Third, plaintiff has detailed the steps it has taken to learn Doe defendant's true identity, 26 including identifying the specific instances of unauthorized reproduction and distribution of 27} plaintiffs copyrighted works, obtaining the IP address allegedly responsible for the infringing 28] activity, and tracing the IP address to a specific ISP and an approximate geographical location.
6
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1) (See Hansmeier Decl. at f¥] 16-28; Complaint at J 6); Sony Music, 326 F.Supp.2d at 566 (finding 2| that “[pllaintiffs have also established that they lack other means to obtain the subpoenaed 3} information” when plaintiffs indicated they had “usled} a publicly available database to trace the 4|| IP address for each defendant, based on the times of infringement.") (citations omitted); see id. 5} at 564-65 (“[T]he absence of alternative means to obtain the subpoenaed information[]” weighs S| in favor of granting discovery of identifying information concerning an anonymous defendant). i Fourth, as previously discussed, see supra at § |., there is clearly an essential need for the 8 subpoenaed information since “[a]scertaining the identit[y] and residence[] of... [Dee defendant] 9] is critical to plaintiff's} ability to pursue litigation, for without this information, plaintiff[] will be 10] unable to serve process.” Sony Music, 326 F. Supp.2d at 566 (finding plaintiffs‘ need for disclosure 111 outweighed Doe defendants’ First Amendment right to remain anonymous in part because 12] “[p]laintiff [sic] have . . . demonstrated that the subpoenaed information is centrally needed for 13} plaintiffs to advance their copyright infringement claims.”). 14 Finally, internet subscribers do not have a reasonable expectation of privacy in their 151 subscriber information as they have already conveyed such information to their ISPs. See London 16], v. Does 1-4, 279 Fed.Appx. 513, 514-15 (9th Cir. 2008) (unpublished disposition) (affirming denial 17] of motion to quash civil subpoena to ISP to reveal owner of email accounts because “exposure 18} of some identifying data does not violate the First Amendment[]’); Doe v. S.E.C., 2011 WL 19} 4593181, at "3 (N.D. Cal. 2011) (noting that disclosure of identifying information freely 20) communicated to a third party “is routinely ordered by courts.”) (internal quotation marks and 21] citation omitted); Guest v. Leis, 255 F.3d 325, 335-36 (6th Cir. 2001) (“Individuals generally lose 22| a reasonable expectation of privacy in their information once they reveal it to third parties.”), First 23| Time Videos, 276 F.R.D. at 249 (“Internet subscribers do not have a reasonable expectation of 24} privacy in their subscriber information as they have already conveyed such information to their 25] ISPs.”). 26 Moreover, where, as here, alleged illegal conduct is involved, individuals have only a 27 minimal expectation of privacy. See Arista Records, LLC v. Does 1-19, 551 F.Supp.2d 1, 9 28], (D.D.C. 2008) (“Not surprisingly, courts have routinely held that a defendant's First Amendment
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privacy interests are exceedingly small where the ‘speech’ is the alleged infringement of copynights."); Sony Music, 326 F.Supp.2d at 566 ("“[Djefendants have little expectation of privacy in downloading and distributing copyrighted songs without permission{.}”) (citation and footnote omitted): Gen. Bd. of Global Ministries, 2006 WL 3479332, at *1-2 & 5 (Unknown defendant alleged to have intruded upon employer's email system and used employee’s email account to send fictitious messages of termination to other employees has “a minimal expectation of privacy in the alleged tortious conduct set forth in the petition.”).
Taken together, these five factors suggest that the Doe defendant's First Amendment right ta anonymous speech aver the internet must give way to plaintiff's right to discovery. See Sony Music, 326 F.Supp.2d at 567; Arista Records, 551 F.Supp.2d at 8-9.
This Order is not intended for publication, Nor is it intended to be included in or
submitted to any online service such as Westiaw or Lexis,
Based on the foregoing, [T IS ORDERED THAT:
1. Plaintiffs Ex Parte Application for Leave to Take Expedited Discovery (Dacument No. 6) is granted to the extent set forth below.
2. Plaintiff may serve immediate discovery on Verizon Internet Services and any related intermediary ISPs (collectively, “the Entities”) to obtain the identity of Doe defendant by serving a subpoena pursuant to Rule 45 that seeks information sufficient to identify Doe defendant, including Doe defendant's name, address, telephone number, e-mail address, and MAC address.
3. If the Entities and/or Doe defendant wish(es) to file a motion to quash the subpoena or to serve objections, they(s/he) must do so before the return date of the subpoena, which shall be no less than twenty-one (21) days from the date of service of the subpoena. Among other things, the Entities may use this time to notify the person(s) in question. iif
4, The Entities shall preserve any subpoenaed information or materials pending compliance with the subpoena or resolution of any timely objections and/or motions to quash.
5. Plaintiff shall serve a copy of this Order on the Entities when it serves the subpoena.
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4 6, Any information disclosed to plaintiff in response to the Rule 45 subpoenas must be 2} used by plaintiff solely for the purpose of protecting plaintiffs rights in pursuing this litigation. 3] Dated this 4th day of September, 2012.
fs/ _ Fernando M. Olguin United States Magistrate Judge
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AQ SRB (Rev, 06/09) Subpoenn to Produce Documents, Information. or Objcers at ta Permit Inspection of Premiacs in a Chit Action
UNITED STATES DISTRICT COURT
for the
Norther District of Illinois
AF HOLDINGS LLC ) Plainuff 5 vy, ) Civil Action No, 2:12-¢v-06669-DMG-FMO JOHN DOE ) pe } (If the action is pending in another district, state where: Defendant } Central District of California }
SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Subpoena Compliance/Custedian of Records: Verizon Online LLC c/a C T Corporation System; 208 $, LaSalle St. Ste. 814, Chicago, IL 60604-1101,
at Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the material: In accordance with the conditions in the attached order, provide the name, current (and parmanent) addresses, telephone numbers, e-mail addresses and Media Access Control addrasses of all persons whose IP addresses are listed in the attached spreadsheet. We will be pleased to provide data to you in the mast efficient and cost effective format if you let us know what your preferred format is.
Place: prenda Law Inc. " Date and Time: 161 N Clark St. Suite 3200 ; | Chicago, IL 60601 10/08/2012 10:00 am
a.
0 Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may Inspect, measure, survey, photograph, tesl, or sample the property or any designated object or operation on it,
Date and Time:
The provisions of Fed. R, Civ, P. 45(c), relating to your protection as a person subject to a subpoena, and Rule 45 (d) and (¢), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are altached.
Date; 09/05/2012
CLERK OF COURT fill Gf My OR
Signaurre of Clerk ar Deputy Clerk Attorney's signature
The name, address, e-mail, and telephone number of the attorney representing (name of panty) , wha issues or requests this subpoena, are:
oe ee Prenda Law, Inc.; 161 N. Clark St. Suite 3200, Chicago IL 80601: paduffy@wefightpiracy.com; (415)
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SUBPOENA ATTACHMENT
The times listed below are in Coordinated Universal Time (UTC)
IP Address Date/Time (UTC) 74.118.185.55 2012-07-05 08:46:12
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PAGE 14/14
SOP
Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 18 of 26 Page ID #:2075
AQ S88 (Rev, 06/09) Subpeene to Produce Dacuments, Taformation, of Chjeets or to Permit Inspection of Promises ina Civil A etion(Page 3)
Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
{c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undve Burden ar Expense: Sanctions, A party or altorney responsible for issuing and serving a subpocna must take reasonable steps to avoid imposing undue burden or expense ona person subject te the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost camings and rcasonable altomcy’s fees — on a party or aliomey who fails to comply,
(2) Command tw Produce Materials ar Permit dnspection.
(A) Appecrance Not Required. A person commended to produce documents, electronically stored information, or tangible things, or lo pemnit the inspection of premises, need nol appear in person at the plice of production or inspection unless also commanded to appear fora deposition, hearing, of trial,
{B) Odjecdions, A person commanded to produce documents or tungible things or to permit inspection may serve on the party or ‘tlorncy designated in the subpocna a written objection 19 inspeciing, copying, lesting or sampling ary or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forins requested. The objection must be served before the carlier of the time specified for compliance oF 14 dys afler the subpoena is served, tf an objection ts made, the folowing rules apply:
{i) At any time. on notice to the commanded person, the serving parly may move the issuing court for an order compelling production or inspection,
(ii) These acts may be required only ag directed in the order, and the order must protect a person who is neither a party nora party's officer from significant expense resulting from compliance,
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a subpoena thar;
{i) fails lo allow a reasonable Lime 19 comply;
(ii) requires 4 person who is neither a pafly nor a party's officer to Lravel more than LOO miles from where that person resides, is employed, or regularly transaets business in person — except that, subject to Rule 45(c)(3)(B)(ii), the person may be commanded to attend a trial by traveling from any such place within the sate where the Utat is held;
(iii) requires disclosure of privileged or ather protected matter, if ny exception or waiver applics; or
{iv) subjects a person to undue burden,
{B) When Permitted. To protect a person subject to or affected by at subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other conlidential research, development, or cotimercial information:
(ti) disclosing an unretained expert's opinion or information that dos ol describe specific oceurrences in dispute and results from the expert's study thal was not requested by 2 party; or
(iii) a person who is neither a party nor 4 party's officer to incur substantial expense to travel more than 100 miles to attend trial.
(C) Specifiing Conditions as an Alternative, In the citcumstanccs described in Rule 45(¢)(3)(B). the coun may. instead of quashing or mudifying a subpoena, order appearance or production under specified condivons ifthe serving party:
(i) shows a subslantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(ti) citsutes that the subpoenaed person will be reasonably compensated,
{d) Duties in Responding to 4 Subpoena.
(lL) Producing Docuntents ar Electranically Stored Information. These procedures apply to producing documents or electronically stored infarmation:
(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the eatezones in the demand,
(B) Form for Praducitg, Blectranicatly Stared Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce itin a form or forms in which it is ordinarily maintained or in a reasonably usable fonn or forms.
(C) Zlectronically Stored information Produced in Onty One Form, The person responding need not produce the same clectroniaally stored information in more than one form.
(D) Jnaccesstble Electranicaily Stored information, The person responding need not provide discovery of electronically stored information from sources thal the person identifies as not reasonably accessible because of undue burden or cost. Gn motion to compel discovery or for a protective order, thé person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may noncthcless order discovery from such sources if the requesting party shows Rood cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection,
(A) Jnformation Withheld. A person withhalding subpocnaed information under a claim that it is privileged or subject to protection as tial-preparatian material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communicalions, or tangible things in a manner that, without revealing information itsclf privileged or protected, will enable the parties to assess the claim.
(B) {nformation Produced. Uf information produced in response to 3 subpoena is subject to a élaim of privilege or of protection as trial- preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy (be specified information and any copies it has; must not use or disclose the information until the claim is resolved: must lake reasonable sleps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is reselved.
(¢) Contempt. The issuing court may held in contempt a person who. having been served, fails without adequate exctise to obey the subpoena. A nonparty’s failure to obey mist be excused if the subpocna purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(cX(3)(AMGI).
Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 19 of 26 Page ID #:2076
EXHIBIT B
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SOP PAGE 61/87
Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 20 of 26 Page ID #:2077
) CT Corporation
To: Subpoena Processing
Service of Process Transmittal 09/06/2012
Log Number 521176122
TANG
Verizon Corporate Security
2701 South Johnson Stree
San Angelo, TX 76904
t, Custodian of Record, MC: TXD01613
RE; Process Served in Iingis
FOR: Verizon Online LLC (Domestic State: DE}
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
TITLE OF ACTION: DOCUMENT(S) SERVED:
COURT/AGENCY:
NATURE OF ACTION:
ON WHOM PROCESS WAS SERVED: DATE AND HOUR OF SERVICE: JURISDICTION SERVED : APPEARANCE OR ANSWER DUE:
ATTORNEY(3} / SENDER(S):
ACTION ITEMS:
SIGNED: PER: ADDRESS:
TELEPHONE:
AF Holdings LLC, Pitf. vs. John Doe, Dft. // To: Verizon Online LLC Letter, Order, Subpoena, Attachment(s)
Northern [istrict of tlinois - U.S. District Court - Eastern Division, IL Case # 212CV066360DWFFM
Subpoena - Email Records - Pertaining ta IP Address 71 106.57.118 CT Corporation System, Chicago, IL
By Process Server on 09/06/2012 at 11:30
ILlinois
10/08/12 at 10:00 a.m.
Paul Duffy Prenda Law, in¢. 161 N, Clark St. Suite 3200 Chicago, IL 60601 312-880-9140
SOP Papers with Transmittal, via Fed Ex 2 Day , 798909833184 SOP Papers with Transmittal, via Fax, Subpoena Processing 325-949-6916
C T Corporation System Thad DiBartelo
208 South LaSalle Street Suite 814
Chicago, IL 60604 342-345-4336
Page 1of 1/W
Information displayed on this tracaméttal ts for CT Corporation's record keeping purposes only and 14 provided to the recipient for quick reference, This information does not constitute a legal ppintan a4 to the nature of action, the amount of damages, the answer date, or any Information cantafned in the déecuments themselves, Recipient 15 responsible for interpreting sald documenta and for taking appropriate action, Signaturcs an certified mail retelpts confirm receipt of package only, not cantents,
49/86/2812 17:41 3123454343 SOP PAGE 62/87 Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 21 of 26 Page ID #:2078
~) enda Law..
Pe ohec! hw2 twrellevtual Prapervy
Y
September 5, 2012
Via Hand Delivery
Re: AF Holdings LLC v, Jolin Doe 2:12-cv-06636-ODW-FFM
Dear Custodian of Records:
Enclosed, please find a subpoena and attachment issued in the above-referenced matter, which is currently pending in the United States District Court for the Central District of California. Specifically, our client ts requesting identifying information with respect to subscriber(s) who were associated with IP addresses controlled by your organization at a given date and time. In our subpoena, we have included the IP address, Time, and Time Zone in our search requests.
We regularly receive requests from Internet Service Providers for electronic copies of the enclosed documents, which we are pleased to fulfill. To receive these documents please e-mail your request to our office at the following e-mail address:
subpocna@wefightpiracy.com
If you have any other questions or concerns regarding this request please direct them to the above e-mail address or feel free to call our offices directly at (415) 325-5900. We will do everything in our power to minimize the burden imposed on your organization associated with our request.
Sincerely,
Preada Law Que. Subpoena “Team
Fax: 302.893.5677 i161 N Clark St., Suite 3200, Chicago, Il. 60601 Tel: 312.890.9160
wewsowefightpiracy.com
49/86/2812
17:41 3123454343 SOP PAGE 483/87
Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 22 of 26 Page ID #:2079
Cas 2:12-cv-06636-ODW-FFM Document 11 Filed 09/04/12 Page 1of2 Page ID #:76
BR wh =
a
Brett L. Gibbs, Esq. (SBN 251000) Of Counsel to Prenda Law Inc.
38 Miller up) ace
Mill walleye CA 94941
415-32
SiEbbs@ vehshtpiracy: com
Attorney for Plaintiff
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
AF HOLDINGS LLC, Case No. 2:12-cv-06636-OD W-FFM Plaintiff, v. [PROPOSED ORDER GRANTING | LAINTIFF’S EX PARTE JOHN DOE, APPLICATION FOR LEAVE TO
TAKE EXPEDITED DISCOVERY
Defendant.
ORDER GRANTING PLAINTIFE’S EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY |
The Court has reviewed the Complaint with attached Exhibits, Plaintiff's Ax Parte Application for Leave to Take Expedited Discovery and all the papers filed in connection with the motion, and relevant case law. Accordingly, it is hereby
ORDERED that Plaintiff's Ex Parte Application for Leave to Take Discovery is GRANTED; it is further
ORDERED that Plaintiff may immediately serve Rule 45 subpoena(s) to identify John Doe associated with the Internet Protocol (“IP”) address listed in the Complaint, limited to the following categories of entities and information:
From Internet Service Provider (ISP) identified in Plaintiff's Ex Parte
Application for Leave to Take Expedited Discovery and any other entity
identified as a provider of Internet services to John Doe in response to a
subpoena or as a result of ongoing BitTorrent activity monitoring:
89/86/2812 17:41 3123454343 soP PAGE 84/87 Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 23 of 26 Page ID #:2080
Cas# 2:12-cv-06636-ODW-FFM Document 11 Filed 09/04/12 Page 2 of 2 Page ID #:77
information sufficient to identify John Doe associated with the IP address listed in the Complaint, including name, current (and permanent) address,
telephone number, e-mail address, and Media Access Control address; it
e LY BH
is further
3 ORDERED any information disclosed to the Plaintiff in response to a Rule 45 6 || subpoena may be used by the Plaintiff solely for the purpose of protecting Plaintiff's 7 \\rights as set forth in its Complaint; it 1s further
8 ORDERED that Plaintiff and any entity which receives a subpoena shall confer, 9 lif necessary, with respect to the issue of payment for the information requested in the 0 |lsubpoena or for resolution of IP addresses which are not controlled by such entity, 11 || duplicate IP addresses that resolve to the same individual, other IP addresses that do 12 |/not provide the name and other information requested of a unique individual, or for 13 {| the entity’s internal costs to notify its customers; it is further
14 ORDERED that any entity which receives a subpoena and elects to charge for 15 ||the costs of production shall provide a billing summary and any cost reports that serve 16 ||as a basis for such billing summary and any costs claimed by such entity; it is further \7 ORDERED that Plaintiff shall serve a copy of this Order along with any 18 || subpoenas issued pursuant to this Order, it is further
19 ORDERED that if any entity subpoenaed pursuant to this Order wishes to move 20 ||to quash the subpoena, it must do so before the return date of the subpoena, which 21 || shall be 30 days from the date of service;
22 Finally, it is ORDERED that the subpoenaed entity shall preserve any
23 ||subpoenaed information pending the resolution of any timely-filed motion to quash.
24
25
26
7 DATED: September 4, 2012 /S/ FREDERICK. F. MUMM 28 United States Magistrate Judge
2 [PROPOSED] ORDER GRANTING APPLICATION FOR EXPEDITED DISCOVERY No. 2:12-ev-06636-ODW-FFM
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4
AQ S813 (Rev, 06/19) Subpoena to Produee Documents, Information, or Objects ar to Penni Inapection of Premises in a Civil Action
UNITED STATES DISTRICT COURT
for the
Northern District of Hlinois
AF HOLDINGS LLG } a Plaintiff ) V. ) Civil Action No, 2:12-¢v-06636-ODW-FFM JOHN DOE } ) (If the action ts pending in another district, state where: aie Prefered? ) Central District of California )
SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Subpoena Compliance/Custodian of Records: Verizon Online LLC clo CT Corporation Systam; 208 S. LaSalle St. Ste. 814, Chicaga, IL 60604-1101.
Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the material: In accordance with the conditions in the attached order, provide the name, current (and permanent) addresses, telephone numbers, e-mail addresses and Media Access Control addresses of all persons whose IP addrasses are listed in the attached spreadsheet. We will be pleased to provide data to you in the most efficient and cost effective format if you let us know what your preferred format is.
Place: Prenda Law i Date and Time: 161 N Clark St. Suite 3200 Chicago, IL 60601
10/08/2012 10:00 am
O Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place: Date and Time:
a rer
The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule 45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing sq, are
uttuched,
Date: | 99/05/2012___ yA of CLERK OF COURT f- ; M zi OR
Signature of Clerk or Deputy Clerk Avorney's signature
The name, address, e-mail, and telephone number of the atlorney representing (name of party)
AF Holdings LLC , who issues or requests this subpoena, are: Paul Duffy, Prenda Law, Inc.; 161 N. Clark St. Suite 3200. Chicago IL 60601; paduffy@wefightpiracy.com, (415) 325-5900
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Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 25 of 26 Page ID #:2082
SUBPOENA ATTACHMENT
The times listed below are in Coordinated Universal Time (UTC)
IP Address Date/Time (UTC) 2012-07-09 20:55:12
A9/B6/2812 17:41 3123454343
SOP PAGE 87/87
Case 2:12-cv-08333-ODW-JC Document 78 Filed 03/11/13 Page 26 of 26 Page ID #:2083
AO 882 (Rev. 06/09) Subpoena to Produce Dacuments, Information, or Objects or to Pennit Inspection of Peemiscs ina Civil Action(Tage 3)
Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
{e) Protecting a Person Subject to 9 Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or allorney responsible for issuing and serving 4 subpoena must take reasonable sieps to avoid imposing unduc burden or expense on a porsun subject tq the subpoena. The issuing court must enforce this duly and impose an appropriate sanction — which may include lost earnings and reasonable attomiey's fees -— on a party or attomey who fails lo comply.
(2) Command to Produce Materials av Permit Inspection.
(A) Appearance Not Reqtired, A person commanded to produce documents. electronically stored information, or langible things, or lo permit the inspection of premises, need not appear in person al the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.
{R) Ofections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecling, copying, (esting or sampling any or all of the materials or to inspecting the premiscs — or te producing electronically stored information itt Lhe form or forms requested, The objection must be served before the earlier of the time specified for complrance or 14 days after (he subpoena is served. If an objection is made, the following tules apply:
(i) Al any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.
(ii) These acts nay be required only as directed in the order, and the order musi protect a person who is neither 9 party nor 2 party's olficer from significant expense resulting from compliance,
(3) Guashing or Modifying a Subpoena.
(A) Hhen Regttired, On timely motion, the issuing court must quash or modily a subpocna that:
(i) fails lo allow a reasonable tine to comply;
(ii) requires a person who is neither a parly nor a party's officer (o Lravel more than 100 miles from where that person resides, is employed. or regularly transacts business in person — except that, subject to Rule 45(¢)(3)(B) iii), the person may be commanded to altend 3 trial by traveling from any such place within the state where the Urial is held:
(iii) requires disclosure of privileged or other protected matter, if na exception or wuiver applies; or
fiy) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpocna, the igsting court may, on motion, quash or modify the subpoena if it requires:
{i) disclosing a trade secret or other confidential research, development, or commercial information;
(ti) disclosing an unrelained expert's opinion or information that docs not describe specific occurrences in dispute and results from Ihe expert’s study that was nol requested by a party; or
(iti) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial,
(C) Seveifving Conditions as an Alternative. In the circumstances described in Rule 45(c}(3){B), the court may. instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cunnat be olterwise met without undue hardship; and
Gi} ensures that the subpocnaed person will be reasonably compensated.
(d) Duties in Responding to a Subpoena,
(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:
{A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand,
(B) Form for Producing Eleetronicaily Stored Information Not Specified. [f'a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in at form or forms in which it is ordinarily maintained or in a reasonably usable form ar forms.
(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronicully stored information in more than one form,
(D) Inaccessible Electronically Stored information, The person respanding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order distovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Jnformarion Withheld, A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
{i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the partics to assess the claim.
(B) Information Produced. If information produced in response to a subpoena is subject toa claim of privilege or of protection as trial- preparation material, the person making the cliim may notify any party that reccived the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has, must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved,
(e) Contempt. The issuing court may hold in contempt a person who, having been served, ails without adequate excuse to obey the subpoena. A nonparty’s failure to obey musi be excused if the subpocna purports to require the nonparty to allend or produce at & place outside the limits of Rule 45(c)(3)(A){ii).