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Ensor v. Does

United States District Court, W.D. Texas, Austin Division

September 23, 2019

ELYSE ENSOR, Plaintiff
v.
JOHN DOES 1-15, Defendants

          ORDER

          SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

         Before 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. § 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 (“Local Rules”).

         I. Background

         On June 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[1] 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.

         On June 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.

         II. Discussion

         A. Legal Standards

         Federal 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.

         Courts 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).

         Where a 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 (1998)).

         B. Early Discovery

         Under the good cause analysis, Plaintiff is entitled to limited early discovery for the purpose of identifying John Doe Defendants 1-10 and effectuating service.

         1. Plaintiff has made a concrete showing of a prima facie claim of actionable harm

          To 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 ...


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