Elargo Holdings, LLC v. Doe-68.105.146.38
2016 U.S. Dist. LEXIS 165853
| M.D. La. | 2016Background
- ELargo, copyright owner of the film "Close Range," sued an unknown infringer identified only by IP address 68.106.146.38 for BitTorrent-based infringement.
- ELargo obtained a prior court order authorizing a Rule 45 subpoena to the ISP (Cox) to learn the subscriber for that IP; Cox identified Lawrence Perteet as the subscriber.
- ELargo investigated and concluded the infringer may be Perteet or another person with regular, permissive access at Perteet’s single-family residence (e.g., an adult child).
- ELargo attempted to obtain Perteet’s voluntary cooperation by letters and phone contact but received no substantive response.
- ELargo moved for leave to take an expedited deposition of Perteet (a non-party subscriber) to identify the actual infringer prior to the Rule 26(f) conference.
- The magistrate judge granted expedited discovery, limited the deposition to two hours, allowed a Rule 45 subpoena, and entered a protective order restricting use of any disclosed identifying information to this litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expedited discovery (pre-Rule 26(f)) to depose a non-party subscriber to identify a Doe defendant is justified | Need to depose Perteet to identify the actual infringer and avoid naming an innocent party; prior steps to identify subscriber exhausted | (Subscriber/non-party) Deposition is unduly broad and prejudicial; account holder can be named as defendant and normal discovery used | Granted: court applied a "good cause" analysis and found ELargo showed a pressing, narrow need for expedited discovery; deposition authorized limited to identity questions and two hours |
| Whether the requested deposition scope and duration are appropriate | Request is narrowly tailored to identify the person who used the IP (name, address, phone, email) and limited burdens on Perteet | Deposition could invade privacy and inquire into technical details and third parties; broader than typical limited discovery | Held: Scope limited to identity information about the infringer; deposition capped at two hours to minimize burden |
| Whether protective measures are required for information obtained from the subscriber | Information should be used only to prosecute ELargo’s claims and protected from broader dissemination | (Implicit) Subscriber’s privacy and risk of public exposure justify strict protections | Held: Court issued a sua sponte protective order—disclosed info usable only in this litigation and only by counsel for the parties; 30 days provided to move to quash |
Key Cases Cited
- Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982) (articulates the preliminary-injunction-style test sometimes used for expedited discovery)
- Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) (discovery to identify unknown defendants is allowed unless discovery would not uncover identities or complaint would be dismissed)
- St. Louis Group, Inc. v. Metals & Additives Corp., 275 F.R.D. 236 (S.D. Tex. 2011) (sets forth the "good cause"/reasonableness framework for expedited discovery)
- Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (recognizes a court’s authority to enter protective orders sua sponte)