Malibu Media, LLC v. Doe

Filing 13

ORDER granting 11 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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-cv-0447-CAB-MDD

MALIBU MEDIA, LLC,
Plaintiff,

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v.

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JOHN DOE – 76.88.81.165,

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Defendant.

ORDER GRANTING MOTION
FOR EARLY DISCOVERY
[ECF NO. 11]

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Before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a

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Third Party Subpoena Prior to a Rule 26(f) Conference. This Motion first

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was filed on March 18, 2016 and denied without prejudice on April 26, 2016,

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for failure to present evidence supporting Plaintiff’s assertion that the

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subscriber of the subject Internet Protocol address likely resides within the

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jurisdiction of this Court. (ECF Nos. 4, 5). Plaintiff refiled the motion on

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June 24, 2016, but the motion package was missing Exhibit A to the

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Declaration of Brenna Erlbaum. (ECF No. 8). When notified of the

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discrepancy, Plaintiff filed the missing exhibit as a standalone documents

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without properly linking it to the Declaration. (ECF No. 10). Finally,
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Plaintiff filed a complete package on July 12, 2016. (ECF No. 11). In

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support of its renewed Motion, Plaintiff supplies the Declaration of Brenna

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E. Erlbaum, which, including its attachment, cures the deficiencies noted by

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the Court in its earlier Order. Accordingly, Plaintiff’s Motion is

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GRANTED.

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I. LEGAL STANDARD

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Formal discovery generally is not permitted without a court order

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before the parties have conferred pursuant to Federal Rule of Civil

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Procedure 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts

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have made exceptions, permitting limited discovery to ensue after filing of

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the complaint to permit the plaintiff to learn the identifying facts necessary

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to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com,

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185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d

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637, 642 (9th Cir. 1980)). Requests for early or expedited discovery are

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granted upon a showing by the moving party of good cause. See Semitool,

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Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002)

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(applying “the conventional standard of good cause in evaluating Plaintiff’s

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request for expedited discovery”).

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“The Ninth Circuit has held that when the defendants’ identities are

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unknown at the time the complaint is filed, courts may grant plaintiffs

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leave to take early discovery to determine the defendants’ identities ‘unless

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it is clear that discovery would not uncover the identities, or that the

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complaint would be dismissed on other grounds.’” 808 Holdings, LLC v.

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Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB),

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2012 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at

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642). “A district court’s decision to grant discovery to determine

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jurisdictional facts is a matter of discretion.” Columbia Ins., 185 F.R.D. at

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578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430

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n.24 (9th Cir. 1977)).

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District courts apply a three-factor test when considering motions for

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early discovery to identify Doe defendants. Id. at 578-80. First, “the

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plaintiff should identify the missing party with sufficient specificity such

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that the Court can determine that defendant is a real person or entity who

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could be sued in federal court.” Id. at 578. Second, the plaintiff “should

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identify all previous steps taken to locate the elusive defendant” to ensure

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that the plaintiff has made a good faith effort to identify and serve process

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on the defendant. Id. at 579. Third, the “plaintiff should establish to the

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Court’s satisfaction that plaintiff’s suit against defendant could withstand a

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motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 642). Further “the

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plaintiff should file a request for discovery with the Court, along with a

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statement of reasons justifying the specific discovery requested as well as

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identification of a limited number of persons or entities on whom discovery

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process might be served and for which there is a reasonable likelihood that

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the discovery process will lead to identifying information about defendant

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that would make service of process possible.” Id. at 580.

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II. ANALYSIS
Upon review of the motion and its supporting declarations, the Court

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finds Plaintiff has sustained its evidentiary burden and shown good cause to

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subpoena records from Time Warner Cable identifying the subscriber

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assigned to the subject IP address at the identified times. The subpoena

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must be limited to documents identifying the subscriber’s name and address

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during the relevant period. That information should be sufficient for

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Plaintiff to be able to identify and serve Defendant. If Plaintiff is unable to

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identify and serve Defendant after receiving a response to the subpoena,

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Plaintiff may seek leave from the Court to pursue additional discovery.

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The Court also must consider the requirements of the Cable Privacy

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Act, 47 U.S.C. § 551. The Act generally prohibits cable operators from

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disclosing personally identifiable information regarding subscribers without

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the prior written or electronic consent of the subscriber. 47 U.S.C. §

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551(c)(1). A cable operator, however, may disclose such information if the

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disclosure is made pursuant to a court order and the cable operator provides

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the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The ISP

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that Plaintiff intends to subpoena in this case is a cable operator within the

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meaning of the Act.

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III. CONCLUSION
For the reasons set forth above, Plaintiff’s Ex Parte Motion for Early
Discovery is GRANTED, as follows:
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Plaintiff may serve a subpoena, pursuant to and compliant with

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the procedures of Fed. R. Civ. P. 45, on Time Warner Cable seeking only the

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name and address of the subscriber assigned to the subject IP address for

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the relevant time period.

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The subpoena must provide at least forty-five (45) calendar days

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from service to production. Time Warner Cable may seek to quash or

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modify the subpoena as provided at Rule 45(d)(3).

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3.

Time Warner Cable shall notify its subscriber, no later than

fourteen (14) calendar days after service of the subpoena, that his or her
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identity has been subpoenaed by Plaintiff. The subscriber whose identity

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has been subpoenaed shall then have thirty (30) calendar days from the

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date of the notice to seek a protective order, to move to quash or modify the

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subpoena or file any other responsive pleading.

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4.

Plaintiff shall serve a copy of this Order with the subpoena upon

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Time Warner Cable. Time Warner Cable, in turn, must provide a copy of

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this Order along with the required notice to the subscriber whose identity is

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sought pursuant to this Order.

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No other discovery is authorized at this time.

IT IS SO ORDERED.
Dated: July 13, 2016

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