Malibu Media, LLC v. Doe

Filing 12

ORDER GRANTING EX PARTE MOTION FOR LEAVE TO SERVE THIRD-PARTY SUBPOENA PRIOR TO RULE 26(f) CONFERENCE by Hon. William Alsup granting 11 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 2/1/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MALIBU MEDIA, LLC,

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For the Northern District of California

United States District Court

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No. C 16-06245 WHA

Plaintiff,
v.

ORDER GRANTING EX PARTE
MOTION FOR LEAVE TO SERVE
THIRD-PARTY SUBPOENA PRIOR
TO RULE 26(f) CONFERENCE

JOHN DOE subscriber assigned IP
address 50.193.16.126,
Defendant.

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Plaintiff, Malibu Media, LLC, alleges that it owns registered copyrights in various

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pornographic films and that John Doe defendant directly infringed those copyrights by

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distributing the films on the Internet using the above-captioned IP address. Malibu Media now

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seeks leave to serve a subpoena on third-party Comcast Cable Communications, LLC, in order

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to ascertain the identity of the subscriber using that IP address prior to a Rule 26(f) conference.

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Malibu Media’s motion is hereby GRANTED. This is without prejudice to any motions

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to quash or modify the subpoena that may be filed by any interested party, including Comcast or

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the subscriber assigned to the IP address. Furthermore, the following limitations apply:

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The subpoena shall only request the actual name and address of the
subscriber to whom Comcast assigned the above-captioned IP address.

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•

The subpoena shall only seek the name and address of the subscriber for
the time frame from FOURTEEN DAYS BEFORE the date of the first alleged
infringing act to FOURTEEN DAYS AFTER the date of the last alleged
infringing act.

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Malibu Media shall attach a copy of this order to the subpoena.

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Malibu Media may not use any information disclosed by Comcast for any
purpose other than protecting its rights as set forth in the complaint.

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Comcast shall, in turn, serve a copy of the subpoena and a copy of this
order on the subscriber within TWENTY-FOUR DAYS of the date of service
on Comcast.

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The return date on the subpoena shall be no less than FORTY-FIVE DAYS
from the date of service on Comcast. Comcast shall not disclose any
identifying information about defendant to Malibu Media prior to the
return date or, if a motion to quash or modify the subpoena is filed, prior
to the resolution of any motions to quash or modify the subpoena.
Malibu Media must inform Comcast if any such motion is filed.

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Malibu Media shall not disclose defendant’s name, address, telephone
number, email, social media username, or any other identifying
information, other than defendant’s IP address, that it may subsequently
learn. All documents including defendant’s identifying information,
apart from his or her IP address, shall be filed under seal, with all such
information redacted on the public docket, unless and until the Court
orders otherwise and only after defendant has had an opportunity to
challenge the disclosure of any identifying information. Malibu Media
explicitly consented to the inclusion of such a protection in its motion.

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Unless otherwise provided, both sides may file under seal any of
defendant’s identifying information pursuant to this order, without
seeking further leave to file under seal. A version with all identifying
information redacted shall be filed on the public docket.

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Malibu Media must seek leave to serve subpoenas on any other Internet
service provider besides Comcast in this matter.

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Malibu Media shall have THIRTY-FIVE DAYS from the date on which it
receives defendant’s identifying information from Comcast (or, if later,
until the deadline set by Rule 4(m)). Any requests to extend that deadline
shall be made immediately as circumstances justifying the extension
arise, rather than at the last minute. Malibu Media must support
any assertion that defendant is dodging service with an affidavit
of non-service (to be filed under seal, with defendant’s identifying
information redacted on the public docket). Malibu Media shall please
file a notice informing the Court of the date on which it received
defendant’s identifying information no later than FIVE CALENDAR DAYS
after receiving that information.

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If Malibu Media learns, whether through subpoena response or other
communication, that defendant’s IP address was assigned to a physical
address outside this district, it shall, within 21 CALENDAR DAYS from the
date on which it learned that information, dismiss the action or SHOW
CAUSE why it should not be dismissed.

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For the Northern District of California

United States District Court

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Any motions relating to the subpoena or the protective order discussed above shall be
filed prior to the return date of the subpoena.

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IT IS SO ORDERED.

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Dated: February 1, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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