Malibu Media, LLC v. John Does 1-29

Filing 15

ORDER granting in part and denying in part 6 Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference and Incorporated Memorandum of Law, by Magistrate Judge Michael E. Hegarty on 3/15/2012. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00397-WJM-MEH
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOES 1-29,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a
Rule 26(f) Conference and Incorporated Memorandum of Law [filed February 16, 2012; docket #6].
The Court held a hearing on the present motion on March 14, 2012, to discuss, among other
concerns, the nature of the technology at issue, and the general course of similar litigation in this
district and others across the country. In light of this discussion, Plaintiff’s motion is granted in
part and denied in part.
Plaintiff’s motion alleges that the Doe Defendants, identified only by their Internet Protocol
(“IP”) addresses, have infringed on Plaintiff’s copyrighted work by using the internet and a
“BitTorrent” protocol to reproduce, distribute, display, or perform Plaintiff’s protected films.
Plaintiff requests permission from the Court to serve limited, immediate discovery on the Doe
Defendants’ Internet Service Providers (“ISPs”) prior to the Rule 26(f) conference. The purpose of
this discovery is to obtain additional information concerning the identities of the Doe Defendants.
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
omitted).
After review of the motion and discussion on the record at the March 14, 2012 hearing, the
Court finds that Plaintiff establishes good cause for limited expedited discovery. Therefore,
Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference and
Incorporated Memorandum of Law [filed February 16, 2012; docket #6] is granted in part as
follows. The Plaintiff may serve third party subpoenas pursuant to Fed. R. Civ. P. 45 on the
identified ISPs with the limited purpose of ascertaining the identities of the Doe Defendants as
identified by the twenty-nine (29) IP addresses listed in Docket #6-4. The subpoenas shall be
limited to providing Plaintiff with the true name, address, telephone number, email address, and
Media Access Control address of the Defendant to whom the ISP has assigned an IP address. With
each subpoena, Plaintiff shall also serve a copy of this Order. Finally, the Court emphasizes that
Plaintiff may only use the information disclosed in response to the subpoenas 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 #6-2] is denied.1

1

Plaintiff’s proposed order asserts, among other statements, a finding that joinder is proper
at this stage in the litigation. (Docket #6-2 at 3.) The Court notes that Plaintiff’s counsel conceded
on the record that other courts have disputed the propriety of joinder in cases similar to this one.
2

Entered and dated at Denver, Colorado, this 15th day of March, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

3