United States District Court, W.D. Texas, Austin Division
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE
this Court is Plaintiff’s Motion for Leave to Conduct
Non-Party Discovery Prior to the Appearance of Any Defendant,
filed on June 17, 2019 (Dkt. No. 2). On July 17, 2019, the
District Court referred the above motion and related filings
to the undersigned Magistrate Judge for resolution pursuant
to 28 U.S.C. Â§ 636(b)(1)(A), Federal Rule of Civil Procedure
72, and Rule 1(c) of Appendix C of the Local Rules of the
United States District Court for the Western District of
Texas (âLocal Rulesâ).
17, 2019, Plaintiff Elyse Ensor (“Plaintiff”)
filed a Complaint against John Does 1-10 (“the Doe
Defendants”) seeking an injunction and damages for
alleged copyright infringement and publication of defamatory
statements. See Dkt No. 1. Plaintiff owns the
copyright to photos titled “Vineyard Photo” and
“July Lake Photo” under Copyright Registration
Numbers VA-2-143-185 and VA-2-143-186, respectively.
Id. at 2. In her Complaint, Plaintiff identifies ten
anonymous posts on ten different websites that displayed
copies of her copyrighted photos and published allegedly
defamatory statements about Plaintiff. See id. at
3-8. Plaintiff alleges that each of these posts constitutes a
separate publication of the defamatory statements and refers
to the unknown authors as John Does 1-10. See id.
Plaintiff identifies the Doe Defendants only by URL links to
the anonymous posts and offers no other identifying
information regarding the authors’ true identities.
See, e.g., Dkt. No. 2 at 2 and Dkt. No. 2-1 at 4. It
is not clear whether the posts were made by a single
individual or ten different individuals.
17, 2019, Plaintiff filed a motion for leave to conduct
limited early discovery to identify one or more of the Doe
Defendants. See Dkt. No. 2. Plaintiff contends that
this early discovery is necessary in order to properly serve
the Doe Defendants. See Id . at 6. Specifically,
Plaintiff asks to serve nonparty subpoenas to the operator
(“Operator”) of each website where the Doe
Defendants posted the infringing content, seeking “the
name, location, IP address, and any other information
relating to the Internet user.” Id. at 3. For
the websites with unknown Operators, Plaintiff seeks to
subpoena the Domain Name Registrars and Privacy Protection
Companies to obtain the Operator’s information to allow
Plaintiff to serve the subpoena for the identifying
information of the Doe Defendants. See Id . at 2-6.
Rule of Civil Procedure 26(d)(1) requires authorization by
court order for any discovery requested prior to a Rule 26(f)
conference between the parties. Fed.R.Civ.P. 26(d)(1).
Although the Federal Rules do not provide a standard for
granting such authorization, this District generally applies
the “good cause standard” to determine whether a
party is entitled to such early discovery. See, e.g.,
Accruent, LLC v. Short, 2017 WL 8811606, at *1 (W.D.
Tex. Nov. 8, 2017); Stockade Cos., LLC v. Kelly Rest.
Group, LLC, 2017 WL 2635285, at *2 (W.D. Tex. June 19,
2017). The party seeking the discovery bears the burden of
showing good cause, and the subject matter of the request
should be “narrowly tailored in scope.”
Stockade, 2017 WL 2635285, at *2.
weigh several factors in the good cause analysis, including:
(1) a concrete showing of a prima facie claim of actionable
harm by the plaintiff; (2) specificity of the discovery
request; (3) the absence of alternative means to obtain the
subpoenaed information; (4) a central need for the subpoenaed
information to advance the claim; and (5) the user’s
expectation of privacy. Well Go USA, Inc. v. Unknown
Participants in Filesharing Swarm, 2012 WL 4387420, at
*1 (S.D. Tex. Sept. 25, 2012).
party seeks a subpoena for identifying information of
anonymous Internet users, whether directly from a known
website operator or indirectly through domain name registrars
and unknown website operators, “the court must also
balance the need for disclosure against the defendant’s
expectation of privacy.” Malibu Media, LLC v.
Doe, 2019 WL 3884159, at *1 (W.D. Tex. August 16, 2019).
In determining whether to authorize early discovery in a
particular case, the court has “broad discretion to
tailor discovery narrowly and to dictate the sequence of
discovery.” Arista Records LLC v. Does 1-19,
551 F.Supp.2d 1, 6 (D.D.C. 2008) (quoting
Crawford–El v. Britton, 523 U.S. 574, 598
the good cause analysis, Plaintiff is entitled to limited
early discovery for the purpose of identifying John Doe
Defendants 1-10 and effectuating service.
Plaintiff has made a concrete showing of a prima facie claim
of actionable harm
assert a prima facie claim of copyright infringement, a party
must allege “(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are
original.” FeistPubl’ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
Plaintiff has satisfied this burden by showing that she owns
the copyrights to the Vineyard and July Lake photos and that
Defendant Does ...