A federal court in Washington state has given the green light for Microsoft to subpoena records from Comcast to discover the identity of the person or persons associated with an IP address used to activate thousands of unauthorized copies of Microsoft software.

Generally, in federal court litigation, a party cannot serve discovery requests or subpoenas until after the plaintiff and defendant have conferred (in a Rule 26(f) conference). But when the plaintiff does not know the identity of the defendant, there is a bootstrapping problem – discovery needs to be taken to find out the defendant with whom to conduct the conference. In situations like this, the plaintiff seeking to unmask an unknown defendant will file its complaint against one or more “John Does,” then ask the court for leave to serve discovery prior to the Rule 26(f) conference.

That is what happened in this case. It is a common tactic used by parties legitimately seeking to enforce intellectual property, as well as parties that may be considered copyright trolls. See, e.g., this early bittorrent case from 2011.

Microsoft filed its complaint and also filed a motion for leave to take discovery prior to the Rule 26(f) conference. Finding that good cause existed for the early discovery, the court granted the motion.

It held that

(1) Microsoft had associated the John Doe Defendants with specific acts of activating unauthorized software using product keys that were known to have been stolen from Microsoft, and had been used more times than were authorized for the particular software,

(2) Microsoft had adequately described the steps it took in an effort to locate and identify the John Doe defendants, specifically by utilizing its “cyberforensics” technology to analyze product key activation data, identifying patterns and characteristics which indicate software piracy,

(3) Microsoft had pleaded the essential elements to state a claim for copyright and trademark infringement, and

(4) the information proposed to be sought through a subpoena appeared likely to lead to identifying information that would allow Microsoft to serve the defendants with the lawsuit.

Microsoft Corp. v. John Does 1-10, 2017 WL 4958047 (W.D. Wash., November 1, 2017)

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