IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Kathleen M. Tafoya

Civil Action No. 11–cv–02754–MSK–KMT

LIBERTY MEDIA HOLDINGS, LLC,

Plaintiff,

v. 

PROTECTED DOMAIN SERVICES CUSTOMER NCR-3356109 d/b/a SITERIPKING.COM,

and

JOHN DOES 2-10, 

Defendants.

ORDER

This matter is before the court on “Plaintiff’s Ex Parte Motion for Early Discovery.” 

(Doc. No. 8, filed Oct. 28, 2011) as well as “Plaintiff’s Motion to Reschedule Rule 16(b)

Scheduling Conference” (Doc. No. 10, filed Nov. 8, 2011). In this case, Plaintiff alleges that

Defendants infringed Plaintiff’s copyrights and trademarks by illegally copying, or “ripping,”

Plaintiff’s websites or material from Plaintiff’s websites. (See Doc. No. 1, filed Oct. 21, 2011

[Compl.].) 

In its Motion, Plaintiff seeks a court order authorizing it to conduct discovery before the

parties have conferred pursuant to Fed. R. Civ. P. 26(f) in order to discover Defendants’

identities. Specifically, Plaintiff proposes to serve discovery requests on Name.com, the

company that provides domain registration and hosting services to the siteripking.com website at

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issue in this case, and Google, the company that serves as the web host for siteripking.com. 

Plaintiff also proposes to serve interrogatories and depositions on any individual identified by

the primary discovery served on Name.com and Google to determine the identities of any

remaining unidentified defendants.

Circumstances arise “where the identity of alleged defendants will not be known prior to

the filing of a complaint.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In such

circumstances, the plaintiff should be given an opportunity through discovery to identify the

unknown defendants, unless it is clear that discovery would not uncover the identities, or that the

complaint would be dismissed on other grounds. Id. (internal citations omitted); see also

Tracfone Wireless, Inc., 642 F.Supp.2d 1354, 1361 (S.D. Fla. 2009). Plaintiff believes there are

no practical measures it could take to uncover the identity of Defendants without formal

discovery.

Federal Rule of Civil Procedure 26(d) generally provides that formal discovery will not

commence until after the parties have conferred as required by Rule 26(f). Qwest

Communications Int’l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003). 

However, Rule 26(d) goes on to explain that discovery may be conducted prior to a Rule 26(f)

conference “when authorized by . . . court order.” Fed.R.Civ.P. 26(d); Arista Records, LLC v.

John Does 1-19, 551 F.Supp.2d 1, 6 (D.D.C. 2008). In this district, courts have permitted such

expedited discovery upon a showing of good cause. Pod-Ners v. Northern Feed & Bean of

Lucerne Ltd., 204 F.R.D. 675, 676 (D. Colo. 2002) (citing Yokohama Tire Corp. v. Dealers Tire

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Supply, Inc., 202 F.R.D. 612, 614 (D. Ariz. 2001)) (finding good cause exists for expedited

discovery in cases involving infringement and unfair competition).

The court finds that good cause exists to permit Plaintiff to conduct expedited discovery

to ascertain the identities of Defendants. Indeed, this case is similar to Arista Records, where the

court permitted expedited discovery to identify defendant allegedly engaged in copyright

infringement by downloading and distributing the plaintiffs’ recording using an ‘online media

distribution system. 551 F.Supp.2d at 3. There the court found that the plaintiffs had set forth

good cause for expedited discovery because the “[d]efendants must be identified before this suit

can progress further.” Id. at 6. 

Much like the Arista Records defendants, Defendants here have engaged in anonymous

online behavior, which will likely remain anonymous unless Plaintiff is able to ascertain their

identities. Additionally, 47 U.S.C. § 551 prohibits cable operators from disclosing personally

identifiable information pertaining to subscribers without the subscriber’s express consent unless

there is “a court order authorizing such disclosure.” 47 U.S.C. § 551(c)(2)(B). Thus, Plaintiff

reasonably believes that there are no practical methods to discover Defendants’ identities

without court-ordered discovery. Accordingly, because it appears likely that Plaintiff will be

thwarted in its attempts to identify Defendants without the benefit of formal discovery

mechanisms, the court finds that Plaintiff should be permitted to conduct expedited discovery for

the limited purpose of

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discovering Defendants’ identities.

Therefore, it is 

ORDERED that “Plaintiff’s Ex Parte Motion for Early Discovery” (Doc. No. 8) is

GRANTED. Plaintiff is authorized to conduct discovery prior to the Fed. R. Civ. P. 26(f)

conference, for the limited purpose of discovering Defendants’ identities. 

It is further 

ORDERED that “Plaintiff’s Motion to Reschedule Rule 16(b) Scheduling Conference”

(Doc. No. 10) is GRANTED. The Scheduling Conference presently set for January 17, 2012 at

10:00 a.m. is VACATED. The Scheduling Conference will be reset by separate order. 

Dated this 9th day of November, 2011.

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