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What is a motion for expedited discovery in federal court?

Posted by Steve Vondran | Dec 20, 2017 | 0 Comments

Federal Court Torrent Law – From Strike 3 Holdings, LLC cases to Malibu Media – You CLICK, We DEFEND®



This blog discusses the MOTION FOR EXPEDITED DISCOVERY that often occurs in Torrent illegal downloading cases.  This is general legal information only and not legal advice.  A motion to expedite discovery is basically a way for Plaintiff attorneys (often defending music, software, movie companies) to get court permission to send a subpoena to your internet service provider (ISP) seeking to locate your name and identity so that (potentially) your name can be added to a federal court lawsuit.  Once the Plaintiff learns your identity, Defendants still often have a good chance to settle their copyright infringement claims before their name is officially added to the lawsuit (by way of amendment) and before it has a chance to become a public record.  We help litigants defend in these types of cases.


2020 BiTorrent Litigation Udpates:  Strike 3 Holdings is still doing the "East-Coast, West-Coast Dance" as I call it.  First using Mamome Villalon, PLLC Law Firm to file a Florida State "Bill of Discovery" action, and then if quashed, (and many times it is), they consider filing a lawsuit where they should have filed it the in the first place - where the Defendant resides.  Many times this is in the California central district (orange county, Los Angeles area) or Northern District (SF bay area).

Check our my "Strike 3 Subpoena Survival Guide" where I answer the top 15 questions my clients normally ask when they get a subpoena notice with a release date from Webpass, Frontier, Com, Comcast,Verizon or other ISP's.

Early Discovery

The law in this case is pulled from a Federal Court Strike 3 Holdings, LLC lawsuit over adult pornography.

In federal court: “A party may not seek discovery from any source before the Rule 26(f) conference unless that party first obtains a stipulation or court order permitting early discovery. Fed. R. Civ. P. 26(d)(1).” What the Plaintiff lawyers do in Torrent lawsuits, is they seek to learn your identity by sending a subpoena to your ISP.  The subpoena seeks your name and address and potentially other personal information.  To do this, they need to seek a court order, and so they FILE A MOTION to seek court approval to send the subpoena.  As the Court noted in the Strike 3 case cited below: “Courts in the Ninth Circuit apply the “good cause” standard in deciding whether to permit early discovery.  Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 274 (N.D. Cal. 2002) (adopting the conventional standard of “good cause” in evaluating a request for expedited discovery). Good cause exists “where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.”  Good cause for expedited discovery has been found in cases involving claims of infringement and unfair competition or in cases where the plaintiff seeks a preliminary injunction.  In infringement cases, expedited discovery is frequently limited to allowing plaintiffs to identify Doe defendants. See  UMG Recordings, Inc. v. Doe, 2008 (N.D. Cal. Sept. 4, 2008) (granting leave to take expedited discovery for documents that would reveal the identity and contact information for each Doe defendant). District courts in the Ninth Circuit apply a three-factor test when considering motions for expedited discovery to identify certain defendants. See Columbia Ins. Co. v., 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). First, the plaintiff should “identify the missing party with sufficient specificity such that the Court can determine that the defendant is a real person or entity who could be sued in federal court.” Second, the plaintiff must describe “all previous steps taken to locate the elusive defendant” to ensure that plaintiff has made a good faith effort to identify the defendant. Third, plaintiff should establish that its lawsuit could withstand a motion to dismiss.  Id.

The third factor is whether or not a Plaintiff can withstand a motion to dismiss (discussed below).

Whether Plaintiff Can Withstand a Motion to Dismiss

“A plaintiff who claims copyright infringement must show: (1) ownership of a valid copyright; and (2) that the defendant violated the copyright owner's exclusive rights under the Copyright Act.”  To prove a claim of direct copyright infringement, “a plaintiff must show that he owns the copyright and that the defendant himself violated one or more of the plaintiff's exclusive rights under the Copyright Act.” Plaintiff provides evidence that it is the exclusive rights holder of the copyrighted works at issue.  Plaintiff alleges that between June 12, 2017 and October 13, 2017,  Defendant infringed Plaintiff's copyrighted work by using the .  Plaintiff further alleges that it did not permit or consent to Defendant's copying or distribution of this work.   Accordingly, Plaintiff has alleged the prima facie elements of direct copyright infringement and could withstand a motion to dismiss.  See  Columbia Ins. Co., 185 F.R.D. at 579-80. Citations pulled from Strike 3 Holdings, LLC v. Doe, No. 17 CV2317-JAH (BLM) (S.D. Cal. Dec. 14, 2017).

Court Order – Granting the Plaintiff's motion for expedited discovery to serve a subpoena on ISP

In this case, the Court GRANTED the motion for expedited discovery (which is fairly typical in P2P file sharing cases).  Here is what the Court ordered in this ONE SIDED hearing: “Having found good cause, the Court  GRANTS Plaintiff's motion for expedited discovery. For the foregoing reasons, it is hereby ordered that: 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45, on Time Warner Cable (Spectrum) that seeks only the true name and address of Doe Plaintiff may not subpoena additional information; 2. Plaintiff may only use the disclosed information for the purpose of protecting its rights in pursuing this litigation; 3. Within fourteen (14) calendar days after service of the subpoena, Time Warner Cable (Spectrum) shall notify the subscriber that its identity has been subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed shall have thirty (30) calendar days from the date of such notice to challenge the disclosure by filing an appropriate pleading with this Court contesting the subpoena; 4. If Time Warner Cable (Spectrum) wishes to move to quash the subpoena, it shall do so before the return date of the subpoena. The return date of the subpoena must allow for at least forty-five (45) days from service to production. If a motion to quash or other customer challenge is brought, Time Warner Cable (Spectrum) shall preserve the information sought by Plaintiff in the subpoena pending resolution of such motion or challenge; and, 5. Plaintiff shall serve a copy of this Order with any subpoena obtained and served pursuant to this Order to Time Warner Cable (Spectrum). Time Warner Cable (Spectrum), in turn, must provide a copy of this Order along with the required notice to the subscriber whose identity is sought pursuant to this Order. This is typical of what a federal court order might look like in a torrent file sharing lawsuit.

REGULAR DISCOVERY (ONCE A CASE IS STARTED) Federal Rule of Civil Procedure 26 Rule 26(b)(1)

FR.CP. RULE 26 provides that parties may obtain non-privileged discovery that is: “relevant to any party's claim or defense and proportional to the needs of the case, considering

[1] the importance of the issues at stake in the action,

[2] the amount in controversy,

[3] the parties' relative access to relevant information,

[4] the parties' resources,

[5] the importance of the discovery in resolving the issues,


[6] whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Rule 26(b)(2) limits discovery where

“(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, and less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action;


(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Information is discoverable when it is both relevant to a party's claim and defense and proportional to the needs of the case. Advis. Comm. Notes to the 2015 Amendment to Rule 26.

Contact a Torrent Defense Lawyer

We can help individuals, fraternities, bed and breakfast and other business organizations defend against charges of illegal copyright infringement or downloading or sharing or adult porn content such as BLACKED, VIXEN and TUSHY vides.  Call us at (877) 276-5084.  We have helped a large number of Defendants defend against charges of illegal movie sharing and are the litigation leader in California.   We offer free initial consultations and low flat rate legal fees.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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