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PLAINTIFF’S REQUEST FOR LEAVE
TO TAKE EARLY DISCOVERY
C-10-4381 (HRL)
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D. GILL SPERLEIN (SBN 172887)
THE LAW OFFICE OF D. GILL SPERLEIN
584 Castro Street, Suite 879
San Francisco, California 94114
Telephone: (415) 404-6615
Facsimile: (415) 404-6616

gill@sperleinlaw.com

Attorney for plaintiff
IO GROUP, INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

IO GROUP, INC. d/b/a TITAN
MEDIA, a California corporation,

Plaintiff,
vs.
DOES 1-138 individuals,

Defendants.

________________________________
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CASE NO.: C-10-4381 (HRL)


PLAINTIFF’S MISCELLANEOUS
ADMINISTRATIVE REQUEST
PURSUANT TO LOCAL RULE 7-11 FOR
LEAVE TO TAKE DISCOVERY PRIOR
TO RULE 26 CONFERENCE




Pursuant to Local Rule 7-11, Plaintiff seeks leave to take limited discovery prior to
the scheduled Rule 26 conference for the reasons set forth herein, and in the concurrently
filed Declaration of Michael Eichner in support of this motion. Plaintiff could not obtain
stipulation for this motion because Plaintiff cannot identify the Doe Defendants until the
requested discovery takes place.

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PLAINTIFF’S REQUEST FOR LEAVE
TO TAKE EARLY DISCOVERY
C-10-4381 (HRL)
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INTRODUCTION AND FACTUAL BACKGROUND
Io Group, Inc. is a California corporation doing business as “Titan Media,” with its
principal place of business located at 69 Converse Street, San Francisco, California 94103.
Titan Media produces, markets, and distributes adult entertainment products, including
Internet website content, videos, DVDs, photographs, etc. Plaintiff operates and maintains
a website by and through which individuals who pay a monthly subscription fee can view
its photographic and audiovisual works. (Complaint at ¶2.)
Defendant DOES 1-138 are individuals whose true names and addresses are
unknown to Plaintiff. (Id. at ¶3.) DOE Defendants 1 through 138 distributed unauthorized
and infringing copies of Plaintiff’s audiovisual works. (Id., passim.)
Io Group, Inc. engaged Media Protector International GmbH (Media Protector
International) to locate and document infringing copies of its copyright protected works on
the P2P Network eDonkey2000. (Decl. of Michael Eichner at ¶2.) Media Protector
International identified locations from which individuals distributed files previously
verified to be Io Group movies. (Id. at ¶9.) Media Protector International then recorded
the IP address and the exact time and date at which it witnessed the infringing files. (Id.)
Plaintiff can only identify the infringers by way of further investigation.
Specifically, in order to determine the identity of the subscribers, Plaintiff must now
subpoena Verizon Internet, the Internet service provider (ISP) that provided Internet access
to the infringers. Internet access providers only maintain subscriber activity logs for a
short period before destroying the information contained in the logs. (Id. at ¶10.)
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PLAINTIFF’S REQUEST FOR LEAVE
TO TAKE EARLY DISCOVERY
C-10-4381 (HRL)
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Accordingly, Plaintiff seeks leave from the Court to serve a Rule 45 third-party subpoena
on Verizon Internet prior to the Rule 26 Case Management Conference in this matter.
Federal law provides for the relief Plaintiff seeks.
ARGUMENT
Federal Rules Allow for Early Discovery
The Federal Rules of Civil Procedure provide that, generally, a party may not
initiate discovery before the parties have met and conferred pursuant to Rule 26(f).
However, Rule 26(d) provides that a court may authorize earlier discovery “for the
convenience of parties and witnesses and in the interests of justice.” Fed. R. Civ. Pro.
26(d). A court may grant a request to take discovery prior the parties’ meeting under Rule
26(f) where the requesting party demonstrates good cause. See Semitool, Inc. v. Tokyo
Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found
where the need for expedited discovery, in consideration of the administration of justice,
outweighs the prejudice to the responding party.” Id. Courts frequently find good cause in
cases involving claims of infringement and unfair competition. Id.
Courts have recognized that, “[s]ervice of process can pose a special dilemma for
plaintiffs in cases like this in which the tortuous activity occurred entirely on-line.”
Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). Accordingly,
courts have developed the following factors to consider when granting motions for
expedited discovery to identify anonymous Internet users: (1) whether the plaintiff can
identify the missing party with sufficient specificity such that the court can determine that
defendant is a real person or entity who could be sued in federal court; (2) all previous
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C-10-4381 (HRL)
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steps taken by the plaintiff to identify the Doe defendant; and (3) whether the plaintiff’s
suit could withstand a motion to dismiss. Id. at 578-80. Each of these factors resolves in
favor of granting Plaintiff’s requested relief.
First, Plaintiff has sufficiently identified individuals who are real persons Plaintiff
could sue in Federal Court. Plaintiff observed and documented infringement of its
registered works by the individuals identified as DOES in the Complaint. (Eichner Decl.
at ¶ 9.) The requested discovery is necessary for Plaintiff to determine the true name and
address of the individuals who performed the infringing acts. (Id. at ¶¶11 and 13.)
Second, there are no other practical measures Plaintiff could take to identify the
DOE Defendants. (Id. at ¶11.) Plaintiff is aware of no available information that would
identify the infringing users, other than information maintained by Verizon Internet (the
name and address of account holders assigned the IP addresses identified by Media
Protector International). Due to the nature of on-line transactions, Plaintiff has no way of
determining Defendants’ identities except through a third-party subpoena. Id.
Third, Plaintiff has asserted a prima facia claim for copyright infringement in its
Complaint that can withstand a motion to dismiss. Specifically, Plaintiff has alleged that
a) it owns and has registered the copyrights in the works at issue and b) the Defendants
made unauthorized reproductions of those works and distributed them without Plaintiff’s
authorization. These allegations state a claim for copyright infringement. 17 U.S.C. §
106(1)(3). As further proof of copyright ownership, Plaintiff submits concurrently with
this request, Keith Ruoff’s declaration attaching copies of the relevant copyright
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PLAINTIFF’S REQUEST FOR LEAVE
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C-10-4381 (HRL)
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registration certificates issued by the United States Copyright Office or applications
therefore. See Ruoff Application Exhibit A.
When outlining the above factors, the court in Columbia noted that in cases where
injured parties are likely to find themselves chasing unidentified tortfeasors from ISP to
ISP, the traditional enforcement of strict compliance with service requirements should be
tempered by the need to provide injured parties with a forum in which they may seek
redress for grievances. Columbia, 185 F.R.D. at 579. An analysis of the factors clearly
demonstrates Plaintiff’s legitimate interest in identifying the name and address of the
individuals who infringed upon its copyrighted works.
Explanation of Specific Requests
In addition to the three factors discussed above, courts have indicated that a plaintiff
requesting early discovery to identify defendants should justify specific requests and
explain how such requests “will lead to identifying information about defendant that would
make service of process possible. See Columbia 185 F.R.D. at 580; Gillespie v. Civiletti,
629 F. 2d 637, 642 (9
th
Cir.1980).
The infringement at issue in this action occurred through a distribution method
commonly referred to as peer-to-peer (P2P). Users download software to their computers
that allows them to locate and transfer files to and from other users. In order to use the
software to locate and exchange files, a user must connect to the Internet. (Eichner Decl.at
¶5.)
Individuals gain access to the Internet through an Internet service provider (ISP).
When an ISP such as Verizon Internet provides Internet access to a subscriber, it does so
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PLAINTIFF’S REQUEST FOR LEAVE
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C-10-4381 (HRL)
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through a modem located at the subscriber’s home or office. (Id. at ¶6.) Each time the
subscriber accesses the Internet, Verizon Internet provides a unique number to the
subscriber called an Internet protocol (IP) address. This is somewhat akin to a telephone
number. (Id.) The IP address for a subscriber may stay the same (a static ip address) or it
may change from time to time (a dynamic ip address). (Id.) ISPs generally record the
times and dates it assigns each IP address to a subscriber. (Id.)
P2P technology used to locate and exchange files relies on the ability to identify the
computers to and from which users search and exchange files. The technology identifies
those computers through the IP address from which the computer connects to the Internet.
In this manner, Media Protector International identified the IP addresses from which
individuals connected to the Internet for the purpose of distributing unauthorized copies of
Plaintiff’s works to others by and through P2P technology. (Id. at ¶7.) Media Protector
International recorded the exact date and time individuals used various IP addresses to
access the Internet to make these files available. (Id.) In all cases, Media Protector
International also conducted test downloads in order to provide conclusive evidence of the
fact that the logged IP addresses uploaded copyrighted works of the Io Group to others by
and through the eD2K network. (Id.)
Anyone can perform a simple search on public databases to determine which
Internet access provider controls a specific ip address. (Id. at ¶12.) All of the Internet
connections used to distribute Plaintiff’s works as alleged in this action originated from IP
addresses controlled by Verizon Internet. (Id. at ¶13.) Plaintiff now seeks to subpoena
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PLAINTIFF’S REQUEST FOR LEAVE
TO TAKE EARLY DISCOVERY
C-10-4381 (HRL)
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Verizon Internet to determine the name and address of the subscribers to whom Verizon
Internet assigned the various IP addresses recorded by Media Protector International.
Plaintiff requests that the Court issue an order allowing Plaintiff to serve a subpoena
on Verizon Internet in substantially the same form as the example attached hereto as
Exhibit A. Judges of this District have issued similar orders. See, UMG Recordings, Inc.
v. Does, 2006 U.S. Dist LEXIS 32821, *6 (N.D. Cal. Mar. 6, 2006). Judge Susan Illston
recently issued such an order in a case identical in every detail to the one now before the
Court except that all the infringers used a different ISP to access the Internet. See,
Declaration of D. Gill Sperlein, Exhibit A.
Since 47 U.S.C. §551 (The Cable Privacy Act) prohibits cable operators from
disclosing personally identifiable information concerning subscribers without the prior
written or electronic consent of the subscriber or a court order, and since some Internet
service providers, are also cable operators, Plaintiff requests that the Court order state
clearly that the Court contemplated the Cable Privacy Act and that the order specifically
complies with the Act’s requirements. See, 47 U.S.C. §551.
CONCLUSION
For the forgoing reasons, Plaintiff respectfully asks that the Court grant Plaintiff’s
request and enter an order substantially in the form of the attached Proposed Order.
Dated: October 8, 2010 Respectfully submitted,

/s/ D. Gill Sperlein

_______________________________
GILL SPERLEIN
Attorney for Plaintiff IO GROUP, INC.
Case4:10-cv-04381-CW Document4 Filed10/08/10 Page7 of 7

AO 88B (Rev. 01/09) Subpoena to Produce Documents, InIormation, or Obiects or to Permit Inspection oI Premises
UNITED STATES DISTRICT COURT
Ior the
District oI
)
)
)
)
)
)
Plaintiff
v. Civil Action No.
(II the action is pending in another district, state where:
Defendant District oI )
SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES
To:
u Production: YOU ARE COMMANDED to produce at the time, date, and place set Iorth below the Iollowing
documents, electronically stored inIormation, or obiects, and permit their inspection, copying, testing, or sampling oI the
material:
Place: Date and Time:
u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set Iorth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated obiect or operation on it.
Place: Date and Time:
The provisions oI Fed. R. Civ. P. 45(c), relating to your protection as a person subiect to a subpoena, and Rule
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences oI not doing so, are
attached.
Date:
CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk Attorney’s signature
The name, address, e-mail, and telephone number oI the attorney representing (name of party)
, who issues or requests this subpoena, are:
IO GROUP, INC.
DOES 1 - 138
C-10-4381 (HRL)
NorthernDistrictoICaliIornia
Verizon Online, LLC

Documents sufficient to identify the names, addresses, telephone numbers, and e-mail addresses for your
subscribers assigned ip addresses identified on Attachment A on the corresponding dates and times.
The Law Office of D. Gill Sperlein ph: 415-404-6615
584 Castro Street, Suite 879 fx: 415-404-6616
San Francisco, CA 94114 gill@sperleinlaw.com
The Law Office of D. Gill Sperlein ph: 415-404-6615
584 Castro Street, Suite 879 fx: 415-404-6616
San Francisco, CA 94114 gill@sperleinlaw.com
Case4:10-cv-04381-CW Document4-1 Filed10/08/10 Page1 of 6
IP Address Date Time (GMT)
1 72.87.175.170 April 29, 2010 06:26:18
2 71.104.98.141 April 30, 2010 21:58:31
3 96.250.250.153 May 2, 2010 18:27:10
4 98.112.133.145 May 10, 2010 15:53:17
5 71.243.138.130 May 19, 2010 16:35:13
6 96.251.197.161 May 22, 2010 18:12:17
7 71.105.115.183 May 27, 2010 23:38:24
8 98.110.4.32 June 11, 2010 04:21:40
9 71.179.148.87 June 12, 2010 06:24:52
10 173.49.157.78 June 13, 2010 01:44:04
11 71.97.132.164 May 14, 2010 15:40:49
12 96.232.167.51 June 10, 2010 15:53:38
13 173.50.140.173 June 14, 2010 15:53:32
14 71.246.120.136 May 20, 2010 14:14:29
15 173.52.133.70 May 31, 2010 18:56:26
16 71.114.63.229 June 7, 2010 20:23:00
17 96.251.9.116 June 9, 2010 08:30:31
18 72.66.94.195 April 10, 2010 21:31:51
19 151.205.99.148 June 6, 2010 15:53:23
20 71.191.229.197 May 26, 2010 02:30:12
21 72.64.78.187 May 4, 2010 03:39:19
22 138.89.86.33 April 25, 2010 15:38:19
23 71.163.138.20 May 8, 2010 03:56:49
24 71.188.80.12 May 10, 2010 00:19:55
25 173.76.22.163 April 2, 2010 07:28:16
26 71.101.228.190 April 11, 2010 01:45:51
27 74.99.5.137 April 15, 2010 07:37:32
28 96.241.217.147 April 18, 2010 09:45:27
29 173.53.17.72 April 19, 2010 08:35:55
30 71.120.233.121 April 20, 2010 04:51:05
31 173.57.183.70 April 28, 2010 05:25:48
32 68.161.233.229 May 4, 2010 11:23:44
33 96.229.57.217 May 5, 2010 15:53:11
34 173.51.164.191 May 11, 2010 09:36:21
35 173.56.150.207 May 19, 2010 00:07:43
36 71.177.2.172 May 23, 2010 22:48:11
37 71.249.126.137 May 24, 2010 20:54:21
38 96.244.85.246 May 24, 2010 11:52:48
39 74.101.164.153 June 5, 2010 03:05:06
40 173.58.70.139 June 7, 2010 02:01:29
41 68.162.209.244 June 12, 2010 18:12:15
42 98.116.172.220 June 19, 2010 17:04:44
43 71.105.91.78 April 28, 2010 03:44:27
44 96.246.40.248 May 6, 2010 15:53:38
45 98.111.158.42 June 2, 2010 13:13:34
46 141.154.235.249 June 11, 2010 21:42:04
47 173.49.61.33 June 12, 2010 06:11:46
48 173.66.150.218 April 19, 2010 03:40:37
49 71.163.227.74 May 30, 2010 01:19:22
50 72.70.73.14 May 31, 2010 05:12:01
51 96.255.96.80 May 11, 2010 14:26:08
Case4:10-cv-04381-CW Document4-1 Filed10/08/10 Page2 of 6
ATTACHMENT A
52 74.100.253.213 April 28, 2010 16:56:27
53 71.251.234.189 May 17, 2010 01:15:05
54 96.231.238.95 May 22, 2010 22:00:47
55 173.67.138.193 June 2, 2010 06:13:34
56 96.240.140.7 June 4, 2010 10:49:13
57 96.255.159.102 May 27, 2010 23:38:43
58 71.112.209.90 May 23, 2010 00:02:12
59 71.180.77.159 June 9, 2010 07:17:18
60 72.64.99.126 June 11, 2010 13:17:02
61 72.95.45.149 May 9, 2010 09:46:26
62 173.58.89.102 April 22, 2010 09:57:48
63 173.79.64.104 June 8, 2010 00:04:45
64 71.246.147.217 April 14, 2010 02:27:45
65 71.164.1.186 June 12, 2010 18:24:33
66 72.68.197.28 June 2, 2010 21:47:25
67 71.252.201.12 May 9, 2010 11:05:41
68 151.203.243.50 May 24, 2010 18:12:47
69 98.119.60.114 June 7, 2010 15:44:50
70 173.48.238.25 May 14, 2010 09:53:56
71 72.70.38.34 June 10, 2010 07:10:14
72 173.64.159.177 May 22, 2010 17:37:15
73 173.68.240.188 May 29, 2010 07:36:53
74 162.83.141.46 June 2, 2010 05:26:25
75 96.242.250.167 June 11, 2010 01:24:12
76 74.106.77.88 April 1, 2010 00:09:44
77 74.101.36.149 May 15, 2010 04:38:30
78 68.161.106.68 June 15, 2010 06:25:05
79 96.251.161.197 April 9, 2010 09:18:21
80 70.108.31.202 June 10, 2010 04:19:42
81 173.68.170.158 May 25, 2010 12:05:53
82 71.108.198.251 May 22, 2010 08:11:42
83 96.227.60.19 May 30, 2010 21:02:13
84 74.101.27.201 June 9, 2010 20:25:39
85 96.236.125.34 June 12, 2010 15:07:22
86 71.121.53.138 May 1, 2010 03:38:39
87 72.68.94.23 May 6, 2010 09:39:48
88 71.162.1.90 April 6, 2010 09:22:14
89 71.187.1.219 April 8, 2010 00:28:53
90 71.96.139.216 April 28, 2010 03:23:37
91 71.162.34.44 May 13, 2010 22:18:51
92 70.107.248.129 June 12, 2010 20:00:15
93 141.156.161.141 April 14, 2010 16:38:02
94 138.88.134.37 May 8, 2010 05:39:15
95 70.110.215.103 June 6, 2010 21:21:29
96 71.245.234.70 April 29, 2010 08:19:42
97 71.191.83.165 May 10, 2010 09:50:14
98 74.96.182.229 June 9, 2010 21:51:30
99 71.173.130.168 June 10, 2010 12:16:49
100 173.78.55.176 June 1, 2010 20:27:04
101 74.96.134.74 June 12, 2010 21:38:08
102 173.56.133.251 May 9, 2010 22:08:07
103 71.99.13.100 June 4, 2010 03:09:25
Case4:10-cv-04381-CW Document4-1 Filed10/08/10 Page3 of 6
104 98.117.127.35 June 10, 2010 19:24:37
105 71.174.174.200 June 12, 2010 06:20:46
106 71.247.71.218 April 2, 2010 07:44:21
107 71.163.232.144 May 14, 2010 18:41:01
108 72.91.75.222 May 20, 2010 07:07:00
109 71.244.120.95 May 23, 2010 03:12:09
110 71.182.163.188 May 20, 2010 10:08:16
111 173.78.93.143 June 14, 2010 15:25:25
112 96.224.146.27 May 10, 2010 21:38:27
113 96.226.231.171 May 19, 2010 11:43:49
114 96.234.180.122 May 8, 2010 21:59:05
115 141.154.241.7 June 14, 2010 15:04:32
116 72.94.239.152 June 1, 2010 10:54:37
117 98.113.70.215 June 9, 2010 18:33:55
118 96.233.153.178 April 5, 2010 21:47:31
119 71.116.4.57 May 27, 2010 10:16:52
120 173.79.117.38 June 2, 2010 12:49:04
121 96.244.251.15 June 9, 2010 06:11:28
122 71.99.191.81 June 10, 2010 17:58:40
123 74.99.50.159 May 28, 2010 01:29:04
124 70.20.20.143 May 29, 2010 17:44:20
125 173.56.199.134 June 9, 2010 14:16:16
126 72.64.231.98 June 11, 2010 14:43:34
127 98.110.150.204 April 13, 2010 15:52:19
128 71.254.185.101 May 20, 2010 02:17:19
129 173.75.192.28 May 20, 2010 17:46:01
130 74.108.21.182 May 18, 2010 12:26:05
131 173.73.17.170 June 5, 2010 15:40:43
132 74.108.83.109 April 2, 2010 07:28:02
133 96.241.146.193 April 2, 2010 07:22:27
134 173.69.175.140 April 21, 2010 10:21:17
135 72.83.161.119 May 23, 2010 00:24:24
136 71.108.136.170 April 22, 2010 13:46:48
137 74.209.41.50 May 26, 2010 03:43:09
138 74.109.114.154 June 3, 2010 16:35:33
Case4:10-cv-04381-CW Document4-1 Filed10/08/10 Page4 of 6

AO 88B (Rev. 01/09) Subpoena to Produce Documents, InIormation, or Obiects or to Permit Inspection oI Premises (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
This subpoena Ior (name of individual and title, if any)
was received by me on (date) .
u I personally served the subpoena on the individual at (place)
on (date) : or
u I leIt the subpoena at the individual`s residence or usual place oI abode with (name)
, a person oI suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual`s last known address: or
u I served the subpoena to (name of individual) , who is
designated by law to accept service oI process on behalI oI (name of organization)
on (date) : or
u I returned the subpoena unexecuted because : or
u other (specify):
Unless the subpoena was issued on behalI oI the United States, or one oI its oIIicers or agents, I have also
tendered to the witness Iees Ior one day`s attendance, and the mileage allowed by law, in the amount oI
$ .
My Iees are $ Ior travel and $ Ior services, Ior a total oI $ .
I declare under penalty oI periury that this inIormation is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional inIormation regarding attempted service, etc:
0.00
C-10-4381 (HRL)
Case4:10-cv-04381-CW Document4-1 Filed10/08/10 Page5 of 6

AO 88B (Rev. 01/09) Subpoena to Produce Documents, InIormation, or Obiects or to Permit Inspection oI Premises (Page 3)
Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible Ior issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subiect to the subpoena. The issuing court must enIorce this
duty and impose an appropriate sanction which may include lost
earnings and reasonable attorney`s Iees on a party or attorney
who Iails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored inIormation, or tangible things, or
to permit the inspection oI premises, need not appear in person at the
place oI production or inspection unless also commanded to appear
Ior a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written obiection to
inspecting, copying, testing or sampling any or all oI the materials or
to inspecting the premises or to producing electronically stored
inIormation in the Iorm or Iorms requested. The obiection must be
served beIore the earlier oI the time speciIied Ior compliance or 14
days aIter the subpoena is served. II an obiection is made, the
Iollowing rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court Ior an order compelling production
or inspection.
(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party`s
oIIicer Irom signiIicant expense resulting Irom compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modiIy a subpoena that:
(i) Iails to allow a reasonable time to comply:
(ii) requires a person who is neither a party nor a party`s oIIicer
to travel more than 100 miles Irom where that person resides, is
employed, or regularly transacts business in person except that,
subiect to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling Irom any such place within the state where
the trial is held:
(iii) requires disclosure oI privileged or other protected matter, iI
no exception or waiver applies: or
(iv) subiects a person to undue burden.
(B) When Permitted. To protect a person subiect to or aIIected by
a subpoena, the issuing court may, on motion, quash or modiIy the
subpoena iI it requires:
(i) disclosing a trade secret or other conIidential research,
development, or commercial inIormation:
(ii) disclosing an unretained expert`s opinion or inIormation that
does not describe speciIic occurrences in dispute and results Irom
the expert`s study that was not requested by a party: or
(iii) a person who is neither a party nor a party`s oIIicer to incur
substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead oI quashing or
modiIying a subpoena, order appearance or production under
speciIied conditions iI the serving party:
(i) shows a substantial need Ior the testimony or material that
cannot be otherwise met without undue hardship: and
(ii) ensures that the subpoenaed person will be reasonably
compensated.
(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored inIormation:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course oI business or must organize and label them to correspond to
the categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. II a subpoena does not speciIy a Iorm Ior producing
electronically stored inIormation, the person responding must
produce it in a Iorm or Iorms in which it is ordinarily maintained or
in a reasonably usable Iorm or Iorms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored inIormation in more than one Iorm.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery oI electronically stored
inIormation Irom sources that the person identiIies as not reasonably
accessible because oI undue burden or cost. On motion to compel
discovery or Ior a protective order, the person responding must show
that the inIormation is not reasonably accessible because oI undue
burden or cost. II that showing is made, the court may nonetheless
order discovery Irom such sources iI the requesting party shows
good cause, considering the limitations oI Rule 26(b)(2)(C). The
court may speciIy conditions Ior the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
inIormation under a claim that it is privileged or subiect to
protection as trial-preparation material must:
(i) expressly make the claim: and
(ii) describe the nature oI the withheld documents,
communications, or tangible things in a manner that, without
revealing inIormation itselI privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. II inIormation produced in response to a
subpoena is subiect to a claim oI privilege or oI protection as trial-
preparation material, the person making the claim may notiIy any
party that received the inIormation oI the claim and the basis Ior it.
AIter being notiIied, a party must promptly return, sequester, or
destroy the speciIied inIormation and any copies it has: must not use
or disclose the inIormation until the claim is resolved: must take
reasonable steps to retrieve the inIormation iI the party disclosed it
beIore being notiIied: and may promptly present the inIormation to
the court under seal Ior a determination oI the claim. The person
who produced the inIormation must preserve the inIormation until
the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person
who, having been served, Iails without adequate excuse to obey the
subpoena. A nonparty`s Iailure to obey must be excused iI the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits oI Rule 45(c)(3)(A)(ii).
Case4:10-cv-04381-CW Document4-1 Filed10/08/10 Page6 of 6

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