Malibu Media, LLC v. John Does 1-16
ORDER denying as moot 7 Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference and Incorporated Memorandum of Law and granting in part and denying in part 9 Plaintiff's (Amended) 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 5/1/12.(pabcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00840-PAB-MEH
MALIBU MEDIA, LLC,
JOHN DOES 1-16,
Michael E. Hegarty, United States Magistrate Judge.
Before the Court are Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to
a Rule 26(f) Conference and Incorporated Memorandum of Law [filed April 3, 2012; docket #7] and
Plaintiff’s (Amended) Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f)
Conference and Incorporated Memorandum of Law [filed April 4, 2012; docket #9]. Because the
amended motion replaces the original motion, the Plaintiff’s original motion is denied as moot.
Further, as set forth herein, the amended 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 copy Plaintiff’s film without Plaintiff’s consent. 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
After review of the motion, the Court finds that Plaintiff establishes good cause for limited
expedited discovery. Therefore, the present motion 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 sixteen (16) IP
addresses listed in Docket #9-3. 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 use the information
disclosed in response to the subpoenas only 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 #9-4]
Plaintiff’s proposed order asserts, among other statements, a finding that joinder is
proper at this stage in the litigation. (Docket #9-4 at 3.) Although Plaintiff has not yet filed a
Notice of Case Association, the Court recognizes particular similarity between the present
motion and motions filed by the same counsel in cases 12-cv-00409-REB-MEH [docket #7] and
12-cv-00397-WJM-MEH [docket #6]. At a hearing held in the above cases, Plaintiff’s counsel
conceded on the record that other courts have disputed the propriety of joinder in cases similar to
this one. Thus, the Court expressly declines to make any statement regarding joinder at this
Entered and dated at Denver, Colorado, this 1st day of May, 2012.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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