Can Expedite Discovery be Applied to Obtain Information from ISPs?

U.S. Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 26(d) and (f) requires parties to a lawsuit to confer before any discovery can be conducted.  Yet under precedent decisions, some previous to the enactment of Fed. R. Civ. P. 26, U.S. courts may conduct expedite discovery upon a showing of good cause.  Can this expedite discovery be applied to obtain information from Internet Service Providers?  Arista Records LLC.  v. Does 1-4, (M.D. Ga. Feb. 25, 2008) addressed the issue of expedite discovery to obtain information from Internet Service Providers ("ISP") in a P2P copyright infringement.  Following, you may find an answer the above question.

In Arista Records LLC.  v. Does 1-4 (hereafter "Arista Records") a Michigan District Court granted expedited discovery, as requested by plaintiff, to obtain information about the defendants from the ISPs.  

Plaintiffs were members of the music record industry that filed a copyright infringement action against four unknown defendants.  Plaintiffs argued that the unknown defendants used P2P (Peer-to-Peer) file sharing to download or distribute plaintiffs' copyrighted music.  Plaintiffs were able to identify the computers used to commit the infringement by tracking the Internet Protocol ("IP") address that is commonly assigned to each computer.  The ISP in this case was Michigan State University. Plaintiffs filed a motion to leave and take immediate discovery under Fed. R. Civ. P. 26 and 45 (including subpoena to the ISP).  Plaintiffs intended to obtain the identity of the four defendants based on the IP addresses available.   Plaintiffs concretely requested information on the defendants' names, current and permanent addresses, phone numbers, e-mails, and Media Access Control address. 

The Michigan District court granted plaintiff's motion to leave and take immediate discovery.  The court based its decision on case law from other jurisdictions that authorized courts to conduct expedite discovery for good cause.  The Michigan court specifically cited to In re Paradise Valley Holdings, No. 03-34704, 2005 WL 3841866 (Bankr. E.D. Tenn. Dec. 29, 2005) and Whitfield v Hochsheid, No. C-1-02-218, 2002 WL 1560267 (S.D. Ohio 2002).  Additionally, the court said: "A number of district courts have found good cause to permit expedited discovery where the recording industry has IP addresses for individuals who have illegally distributed or downloaded music, but do not have the name of the person whose computer was assigned that address." 

The Michigan court held that good cause is found upon: "(1) allegations of copyright infringement, (2) the danger that the ISP will not preserve the information sought, (3) the narrow scope of the information sought, and (4) the conclusion that expedited discovery would substantially contribute to moving the case forward."

Further, the Michigan court acknowledged that expedited discovery had been denied by other courts in cases involving petitions for subpoena to ISPs.  In most of those cases, denials were based on the Cable Communication Policy Act ("CCPA") and The Digital Millennium Copyright Act (DMCA).
Thus, it seems that US courts favor expedited discovery, including request for subpoena to ISP, in copyright infringement cases.  The four-prompt test used by the Michigan court can be a good tool for those seeking expedited discovery.  On the other hand, opposing parties can resort to the DMCA and the CCPA, the US Privacy Act, and similar laws to support their arguments against expedited discovery involving ISPs.