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New Sensations, Inc v. John Does 1-32

July 30, 2012

NEW SENSATIONS, INC.,
PLAINTIFF,
v.
JOHN DOES 1-32,
DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

Plaintiff New Sensations, Inc. filed an ex parte motion seeking permission to take discovery, before a Rule 26(f) conference, from third-party Internet Service Providers ("ISPs") to identify the names, addresses, email addresses, and Media Access Control ("MAC") addresses associated with identified Internet Protocol ("IP") addresses that New Sensations alleges were used to illegally share a file containing its copyrighted motion picture in violation of 17 U.S.C. § 101 et seq. For the reasons that follow, the motion to serve Rule 45 subpoenas on third-party ISPs is granted, pursuant to a protective order.

I. BACKGROUND*fn1

New Sensations is a California corporation that produced a motion picture entitled "Seinfeld #2: A XXX Parody" (the "movie"). The movie is copyrighted and is available for purchase. John Does 1-32 ("Does 1-32" or the "Doe defendants") are 32 unknown individuals associated with the 32 IP addresses named in the Complaint.

New Sensations's Complaint arises from the illegal distribution of copies of the movie through peer-to-peer file-sharing networks. Peer-to-peer file-sharing networks facilitate the sharing of very large files among individual computer users. In this instance, one copy of the movie (distinguishable from other copies by a unique piece of forensic data known as a "hash") was shared by and downloaded by multiple Internet users in what is referred to as a "swarm." A swarm is a group of Internet users who come together to download and then, in turn, distribute by sharing with others, a file.

New Sensations did not consent to the distribution of unlawful copies of the movie, a copyrighted work, by way of swarms. The subject of this lawsuit is an unlawful copy of the movie that was shared by a swarm believed by New Sensations-and confirmed by reverse-IP looks-ups-to consist of Internet users in and around New York City, in New York State,*fn2 during the months of January, February, and March 2012. New Sensations does not know the actual identity of the individuals who participated in the swarm; the primary identification information they have are these individuals' IP addresses. ISPs assign IP addresses to subscribers, and, generally, keep records that correlate a subscriber's true identity (e.g., name, address, and email address) to that subscriber's IP address.

On May 3, 2012, New Sensations filed its Complaint in this action (Dkt. 1). On May 8, 2012, it filed this motion to take discovery before a Rule 26(f) conference (Dkt. 2). New Sensations seeks to obtain from the third-party ISPs, by way of a Rule 45 subpoena, the names, addresses, email addresses, and MAC addresses associated with the IP addresses that participated in the swarm.

II. DISCUSSION

A. Joinder of Does 1-32

Under Federal Rule of Civil Procedure 20(a)(2), persons "may be joined in one action as defendants if . . . any right to relief is asserted against them . . . with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences" and "any question of law or fact common to all defendants will arise in the action." "Under the Federal Rules of Civil Procedure, 'the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.'" Digital Sin I, 279 F.R.D. at 243 (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)). Here, New Sensations argues that Does 1-32 have been properly joined, because they traded, through cooperative uploading and downloading, the same file of the movie in a swarm.

In recent months, courts in this district and around the country have considered the proprietary of joinder in similar copyright cases, all naming multiple John Doe defendants. Some courts that have considered this issue have found joinder improper, whereas others have found for joinder in case similarly postured to this one. See, e.g., Digital Sin I, 279 F.R.D. at 243 nn.4-5 (collecting cases). This Court is persuaded by the standard articulated by the Hon. Paul A. Crotty, in DigiProtect USA Corp v. Does 1-240, No. 10-cv-8790, 2011 WL 4444666 (S.D.N.Y. Sept. 26, 2011)and the Hon. Alison J. Nathan, in Digital Sin, Inc.: At this initial stage, joinder is proper if plaintiff specifically alleges defendants' connection to the same swarm. See Digital Sin I, 279 F.R.D. at 244; DigiProtect USA Corp., 2011 WL 4444666, at *3 n.3.

Here, New Sensations makes such concrete allegations, based on research which indicates these transactions involved one file, marked by the same hash, traded among geographically centralized individuals over a three-month period. Accordingly, joinder of the Doe defendants is, at this stage of the case, appropriate.

B. Pre-Conference Discovery

Generally, Federal Rule of Civil Procedure 26 calls for the parties to meet and confer prior to commencing discovery, but provides for earlier discovery pursuant to a court order. See Fed. R. Civ. P. 26(d), (f). Courts in this district "have applied a 'flexible standard of reasonableness and good cause' to determine whether expedited discovery is appropriate." Digital Sin Inc. v. Does 1-27, No. 12-cv-3873, 2012 WL 2036035, at *3 (S.D.N.Y. June 6, 2012) ("Digital Sin II") (quoting Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326-27 (S.D.N.Y. 2005)). This Court follows the recent precedents set by other courts in this district in nearly identical circumstances in finding that such good cause exists here for granting New Sensations's motion for expedited discovery. See, e.g., Digital Sin II, 2012 WL 2036035, at *4; Digital Sin I, 279 F.R.D. at 241. As in those cases, plaintiff has no reasonable means other than through the ISPs by which to identify the individuals allegedly involved in the swarm, and the ISPs, in turn, are statutorily ...


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