Malibu Media, LLC v. John Doe subscriber assigned IP address 18.104.22.168
ORDER granting in part and denying in part 9 Plaintiff's Motion for Leave to Serve Third Party Subpoena Prior to a Rule 26(f) Conference, by Magistrate Judge Michael E. Hegarty on 4/3/2013. (mehcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00739-WYD-MEH
MALIBU MEDIA, LLC,
JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 22.214.171.124,
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Motion for Leave to Serve Third Party Subpoena Prior to a
Rule 26(f) Conference [filed April 1, 2013; docket #9] and corresponding memorandum of law
Plaintiff’s motion is granted in part and denied in part as follows.
Plaintiff’s motion alleges that the Doe Defendant, identified only by his or her Internet
Protocol (“IP”) address, has infringed on Plaintiff’s copyrighted works by using the internet and a
“BitTorrent” protocol to copy Plaintiff’s protected works without Plaintiff’s consent. Plaintiff
requests permission from the Court to serve limited, immediate discovery on the Doe Defendant’s
Internet Service Provider (“ISP”) prior to the Rule 26(f) conference. The purpose of this discovery
is to obtain additional information concerning the identity of the Doe Defendant.
Fed. R. Civ. P. 26(d) proscribes seeking discovery before Rule 26(f) conferral. However,
this prohibition is not absolute; the Court may authorize discovery upon a showing of good cause.
Pod-Ners, LLC v. Northern Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675, 676 (D.
Colo. 2002). “Expedited discovery should be limited, however, and narrowly tailored to seek
information necessary to support expedited or preliminary relief.” Avaya, Inc. v. Acumen Telecom
Corp., No. 10-cv-03075-CMA-BNB , 2011 WL 9293, at *2 (D. Colo. Jan. 3, 2011) (citation
After review of the motion, the Court finds that Plaintiff establishes good cause for limited
expedited discovery. Therefore, Plaintiff’s motion is granted as follows. The Plaintiff may serve
a third party subpoena pursuant to Fed. R. Civ. P. 45 on the identified ISP with the limited purpose
of ascertaining the identity of the Doe Defendant as identified by the IP address listed in the
Complaint [docket #1]. The subpoena shall be limited to providing Plaintiff with the name, address,
telephone number, and email address of the Defendant to whom the ISP has assigned an IP address.
With the subpoena, Plaintiff shall also serve a copy of this Order. The ISP shall notify the
subscriber that his/her identity has been subpoenaed by the Plaintiff. Finally, the Court emphasizes
that Plaintiff may only use the information disclosed in response to the subpoena for the purpose of
protecting and enforcing its rights as set forth in its Complaint [docket #1]. The Court cautions
Plaintiff that improper use of this information may result in sanctions. All other relief requested in
the proposed order [docket #9-5] is denied.
Entered and dated at Denver, Colorado, this 3rd day of April, 2013.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge