Colorado federal court allows discovery of anonymous P2P defendants

Warner Bros. Records Inc. v. Does 1-20, Slip Op., 2007 WL 1655365 (D.Colo. June 5, 2007)

Good cause for discovery before Rule 26(f) conference existed in light of looming threat of deletion of server data

A number of record companies, including Warner Brothers, UMG and Electra, filed yet another copyright infringement lawsuit against some individual P2P users on May 30 of this year. They didn’t know the names or the locations of the defendants, but only knew that the IP addresses from which the alleged infringement occurred belonged to Qwest Communications. So the plaintiffs asked the court for permission to obtain immediate discovery from Qwest to find out each John Doe defendant’s true name, address, telephone number, e-mail address, and Media Access Control address.

Unless a party seeking immediate discovery can show good cause as to why it should be otherwise, under Fed. R. Civ. P. 26(d), “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).”

In this case, the record companies argued that because ISPs such as Qwest typically keep server logs for only brief periods of time, the plaintiffs might never identify the defendants without getting access to the data right away. The court held that “good cause exists where the evidence sought ‘may be consumed or destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation.'” It granted the plaintiffs’ motion and allowed the service of the subpoena.