Malibu Media, LLC v. Doe

Filing 14

ORDER granting 12 Ex Parte MOTION for Leave to File /Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Mitchell D. Dembin on 7/13/16. (Dembin, Mitchell)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 16-cv-0429-JAH-MDD MALIBU MEDIA, LLC, Plaintiff, 12 13 v. 14 JOHN DOE -, 15 Defendant. ORDER GRANTING MOTION FOR EARLY DISCOVERY [ECF NOS. 9, 12] 16 17 Before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a 18 Third Party Subpoena Prior to a Rule 26(f) Conference. This Motion first 19 was filed on March 18, 2016 and denied without prejudice on April 26, 2016, 20 for failure to present evidence supporting Plaintiff’s assertion that the 21 subscriber of the subject Internet Protocol address likely resides within the 22 jurisdiction of this Court. (ECF Nos. 4, 6). Plaintiff refiled the motion on 23 June 24, 2016, but the motion package was missing Exhibit A to the 24 Declaration of Brenna Erlbaum. (ECF No. 9). When notified of the 25 discrepancy, Plaintiff filed the missing exhibit as a standalone documents 26 without properly linking it to the Declaration. (ECF No. 10). Finally, 1 16-cv-0429-JAH-MDD 1 Plaintiff filed a complete package on July 12, 2016. (ECF No. 12). In 2 support of its renewed Motion, Plaintiff supplies the Declaration of Brenna 3 E. Erlbaum, which, including its attachment, cures the deficiencies noted by 4 the Court in its earlier Order. Accordingly, Plaintiff’s Motion is 5 GRANTED. 6 7 I. LEGAL STANDARD 8 Formal discovery generally is not permitted without a court order 9 before the parties have conferred pursuant to Federal Rule of Civil 10 Procedure 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts 11 have made exceptions, permitting limited discovery to ensue after filing of 12 the complaint to permit the plaintiff to learn the identifying facts necessary 13 to permit service on the defendant.” Columbia Ins. Co. v., 14 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 15 637, 642 (9th Cir. 1980)). Requests for early or expedited discovery are 16 granted upon a showing by the moving party of good cause. See Semitool, 17 Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002) 18 (applying “the conventional standard of good cause in evaluating Plaintiff’s 19 request for expedited discovery”). 20 “The Ninth Circuit has held that when the defendants’ identities are 21 unknown at the time the complaint is filed, courts may grant plaintiffs 22 leave to take early discovery to determine the defendants’ identities ‘unless 23 it is clear that discovery would not uncover the identities, or that the 24 complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 25 Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 26 2 16-cv-0429-JAH-MDD 1 2012 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at 2 642). “A district court’s decision to grant discovery to determine 3 jurisdictional facts is a matter of discretion.” Columbia Ins., 185 F.R.D. at 4 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 5 n.24 (9th Cir. 1977)). 6 District courts apply a three-factor test when considering motions for 7 early discovery to identify Doe defendants. Id. at 578-80. First, “the 8 plaintiff should identify the missing party with sufficient specificity such 9 that the Court can determine that defendant is a real person or entity who 10 could be sued in federal court.” Id. at 578. Second, the plaintiff “should 11 identify all previous steps taken to locate the elusive defendant” to ensure 12 that the plaintiff has made a good faith effort to identify and serve process 13 on the defendant. Id. at 579. Third, the “plaintiff should establish to the 14 Court’s satisfaction that plaintiff’s suit against defendant could withstand a 15 motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 642). Further “the 16 plaintiff should file a request for discovery with the Court, along with a 17 statement of reasons justifying the specific discovery requested as well as 18 identification of a limited number of persons or entities on whom discovery 19 process might be served and for which there is a reasonable likelihood that 20 the discovery process will lead to identifying information about defendant 21 that would make service of process possible.” Id. at 580. 22 23 II. ANALYSIS Upon review of the motion and its supporting declarations, the Court 24 finds Plaintiff has sustained its evidentiary burden and shown good cause to 25 subpoena records from Time Warner Cable identifying the subscriber 26 3 16-cv-0429-JAH-MDD 1 assigned to the subject IP address at the identified times. The subpoena 2 must be limited to documents identifying the subscriber’s name and address 3 during the relevant period. That information should be sufficient for 4 Plaintiff to be able to identify and serve Defendant. If Plaintiff is unable to 5 identify and serve Defendant after receiving a response to the subpoena, 6 Plaintiff may seek leave from the Court to pursue additional discovery. 7 The Court also must consider the requirements of the Cable Privacy 8 Act, 47 U.S.C. § 551. The Act generally prohibits cable operators from 9 disclosing personally identifiable information regarding subscribers without 10 the prior written or electronic consent of the subscriber. 47 U.S.C. § 11 551(c)(1). A cable operator, however, may disclose such information if the 12 disclosure is made pursuant to a court order and the cable operator provides 13 the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The ISP 14 that Plaintiff intends to subpoena in this case is a cable operator within the 15 meaning of the Act. 16 17 18 19 III. CONCLUSION For the reasons set forth above, Plaintiff’s Ex Parte Motion for Early Discovery is GRANTED, as follows: 1. Plaintiff may serve a subpoena, pursuant to and compliant with 20 the procedures of Fed. R. Civ. P. 45, on Time Warner Cable seeking only the 21 name and address of the subscriber assigned to the subject IP address for 22 the relevant time period. 23 2. The subpoena must provide at least forty-five (45) calendar days 24 from service to production. Time Warner Cable may seek to quash or 25 modify the subpoena as provided at Rule 45(d)(3). 26 3. Time Warner Cable shall notify its subscriber, no later than 4 16-cv-0429-JAH-MDD 1 fourteen (14) calendar days after service of the subpoena, that his or her 2 identity has been subpoenaed by Plaintiff. The subscriber whose identity 3 has been subpoenaed shall then have thirty (30) calendar days from the 4 date of the notice to seek a protective order, to move to quash or modify the 5 subpoena or file any other responsive pleading. 6 4. Plaintiff shall serve a copy of this Order with the subpoena upon 7 Time Warner Cable. Time Warner Cable, in turn, must provide a copy of 8 this Order along with the required notice to the subscriber whose identity is 9 sought pursuant to this Order. 10 5. 11 IT IS SO ORDERED. 12 No other discovery is authorized at this time. Dated: July 13, 2016 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 16-cv-0429-JAH-MDD

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