Malibu Media, LLC v. John Doe subscriber assigned IP address 71.212.197.251
Filing
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ORDER granting in part and denying in part 8 Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. By Magistrate Judge Kathleen M. Tafoya on 2/21/2013. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13–cv–00425–MSK–KMT
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 71.212.197.251,
Defendant.
ORDER
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” (Doc. No. 8, filed February 21, 2013). Plaintiff’s
motion is granted in part and denied in part.
Plaintiff’s motion alleges that the Doe Defendant, identified only by an Internet Protocol
(“IP”) address, has infringed on Plaintiff’s copyrighted work by using the internet and a
“BitTorrent” protocol to reproduce, distribute, display, or perform Plaintiff’s protected film.
Plaintiff requests permission from the Court to serve limited, immediate discovery on the Doe
Defendant’s Internet Service Provider (“ISP”) prior to the Rule 26(f) conference. The purpose
of this discovery is to obtain additional information concerning the identity of the Doe
Defendant.
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, the Court finds that Plaintiff establishes good cause for
limited expedited discovery. Therefore, Plaintiff’s motion is granted in part as follows. The
Plaintiff may serve a third party subpoena pursuant to Fed. R. Civ. P. 45 on the identified ISP
with the limited purpose of ascertaining the identity of the Doe Defendant. The subpoena shall
be limited to providing Plaintiff with the name, address, telephone number, and email address of
the subscriber (Doe Defendant) to whom the ISP has assigned an IP address. With the subpoena,
Plaintiff shall also serve a copy of this Order. The ISP shall notify the subscriber that his/her
identity has been subpoenaed by the Plaintiff. Finally, the Court emphasizes that 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 its Complaint (Doc. No. 1). The Court cautions Plaintiff that
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any improper use of this information may result in sanctions. All other relief requested in the
proposed order (Doc. No. 8-6) is denied.
Dated this 21st day of February, 2013.
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