Malibu Media, LLC v. John Doe subscriber assigned IP address 24.9.11.70

Filing 11

ORDER granting in part 9 Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. By Magistrate Judge Kristen L. Mix on 2/14/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00312-REB-KLM
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOE, subscriber assigned IP address 24.9.11.70,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to Serve a Third
Party Subpoena Prior to a Rule 26(f) Conference [Docket No. 9; Filed February 12,
2013] (the “Motion”).
In the Complaint [#1], Plaintiff alleges that John Doe , who is only identified by his
Internet Protocol (“IP”) address, infringed on Plaintiff’s copyrighted work by downloading
it from the Internet without Plaintiff’s permission using the “BitTorrent” protocol. In the
Motion [#9], Plaintiff seeks leave to serve a third party subpoena pursuant to Fed. R. Civ.
P. 45 on John Doe's internet service provider (“ISP”) for the sole purpose of obtaining
personally identifiable information.
Pursuant to Fed. R. Civ. P. 26(d), discovery may not take place prior to a Fed. R.
Civ. P. 26(f) conferral. Regardless, upon a showing of good cause, the Court may
authorize expedited, limited discovery “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).
A review of the Motion indicates that there is no other feasible method for Plaintiff
to obtain the identity of John Doe other than through service of a third party subpoena prior
to the commencement of discovery in this matter. Accordingly,
IT IS HEREBY ORDERED that the Motion [#9] is GRANTED in part as follows:
1.

Plaintiff may serve a third party subpoena pursuant to Fed. R. Civ. P. 45 on
John Doe's ISP for the limited purpose of ascertaining the personally
identifiable information of John Doe as identified by the IP address
24.9.11.70.

2.

The subpoena shall be limited to providing Plaintiff with the name, address,
telephone number, and e-mail address of the subscriber to whom the ISP
has assigned the applicable IP address.

3.

Plaintiff shall also serve a copy of this Order with the subpoena. The ISP
shall notify the subscriber that his or her identity has been subpoenaed by
Plaintiff.

4.

Plaintiff may only use the information disclosed in response to the subpoena
for the purpose of protecting and enforcing its rights as set forth in the
Complaint [#1].

The Court warns Plaintiff that improper use of the

information obtained by the subpoena may result in sanctions.
Dated: February 14, 2013