Malibu Media, LLC v. John Does 1-27

Filing 10

ORDER. The Plaintiffs Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference and Incorporated Memorandum of Law 7 is GRANTED IN PART and DENIED IN PART. By Magistrate Judge Kathleen M. Tafoya on 2/27/2012.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–00406–REB–KMT

MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOES 1-27,
Defendants.

ORDER

This matter is before the court on “Plaintiff’s Motion for Leave to Serve Third Party
Subpoenas Prior to a Rule 26(f) Conference and Incorporated Memorandum of Law.” (Doc. No.
7, filed Feb. 16, 2012 [Mot].) In this case, Plaintiff alleges that the John Doe Defendants
(hereinafter “Defendants”) used BitTorrent technology, which allows “peer-to-peer file sharing,”
to infringe upon Plaintiff’s copyrighted material, namely a motion picture entitled “Rich Girl
Part 2.” (See Doc. No. 1, filed Feb. 15, 2012 [Compl.].) In its Motion, Plaintiff seeks a court
order authorizing it to conduct discovery before the parties have conferred pursuant to Fed. R.
Civ. P. 26(f) in order to discover Defendants’ identities.
First, as a general rule, the use of “John Doe” or other fictitious names to identify a
defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (internal
citation omitted). However, circumstances arise “where the identity of alleged defendants will

not be known prior to the filing of a complaint.” Id. (internal citations omitted). In such
circumstances, the plaintiff should be given an opportunity through discovery to identify the
unknown defendants, unless it is clear that discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds. Id. (internal citations omitted); see also
Tracfone Wireless, Inc., 642 F.Supp.2d 1354, 1361 (S.D. Fla. 2009).
Plaintiff believes that without this information, it cannot serve Defendants nor pursue this
lawsuit. As such, Plaintiff proposes to serve subpoenas pursuant to Fed. R. Civ. P. 45 on
Defendants’ Internet Service Providers (“ISPs”), who Plaintiff maintains can use the Defendants’
Internet Protocol (“IP”) addresses to identify Defendants, as well as any related intermediary
ISPs.
Federal Rule of Civil Procedure 26(d) generally provides that formal discovery will not
commence until after the parties have conferred as required by Rule 26(f). Qwest Commc’ns
Int’l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003). However, Rule
26(d) goes on to explain that discovery may be conducted prior to a Rule 26(f) conference “when
authorized by . . . court order.” Fed.R.Civ.P. 26(d); Arista Records, LLC v. John Does 1-19, 551
F.Supp.2d 1, 6 (D.D.C. 2008). In this district, courts have permitted such expedited discovery
upon a showing of good cause. Pod-Ners v. Northern Feed & Bean of Lucerne Ltd., 204 F.R.D.
675, 676 (D. Colo. 2002) (citing Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D.
612, 614 (D. Ariz. 2001)) (finding good cause exists for expedited discovery in cases involving
infringement and unfair competition).

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The court finds that good cause exists to permit Plaintiff to conduct expedited discovery
to ascertain the identities of Defendants. Indeed, this case is similar to Arista Records, where the
court permitted expedited discovery to identify defendant allegedly engaged in copyright
infringement by downloading and distributing the plaintiffs’ recording using an “online media
distribution system.” 551 F.Supp.2d at 3. There the court found that the plaintiffs had set forth
good cause for expedited discovery because the “[d]efendants must be identified before this suit
can progress further.” Id. at 6.
Much like the Arista Records defendants, Defendants here have engaged in anonymous
online behavior, which will likely remain anonymous unless Plaintiff is able to ascertain their
identities. Thus, Plaintiff reasonably believes that there are no practical methods to discover
Defendants’ identities without court-ordered discovery. Accordingly, because it appears likely
that Plaintiff will be thwarted in its attempts to identify Defendants without the benefit of formal
discovery mechanisms, the court finds that Plaintiff should be permitted to conduct expedited
discovery, pursuant to Fed. R. Civ. P. 45, for the limited purpose of discovery the identities of
Defendants.
Therefore, for the foregoing reasons, it is
ORDERED that the “Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior
to a Rule 26(f) Conference and Incorporated Memorandum of Law” (Doc. No. 7) is GRANTED
IN PART. Plaintiff may serve third party subpoenas pursuant to Fed. R. Civ. P. 45 on the
identified ISPs for the limited purpose of ascertaining the Doe Defendants’ identities, as set forth
herein.
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It is further
ORDERED that the subpoenas are limited to providing Plaintiff with the true name,
address, telephone number, e-mail address and Media Access Control (“MAC”) address of the
Defendant to whom the ISP assigned an IP address. The subpoenas are limited to the
information related to the IP addresses set forth in the exhibit located at (Doc. No. 7-3). Plaintiff
shall serve a copy of this Order with the issued subpoenas.
It is further
ORDERED that Plaintiff may only use the information disclosed in response to a Rule
45 subpoena served on an ISP for the purpose of protecting and enforcing Plaintiff’s rights as set
forth in its Complaint (Doc. No. 1).
It is further
ORDERED that nothing set forth herein abrogates the protections afforded to
Defendants under Fed. R. Civ. P. 45(c).
It is further
ORDERED that the Motion is DENIED as to the additional relief stated in the proposed
order located at (Doc. No. 7-4).
Dated this 27th day of February, 2012.

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