Malibu Media, LLC v. Doe

Filing 9

ORDER granting 7 motion for leave to serve third party subpoena prior to Rule 26(f) conference, subject to the conditions provided within the attached order. Signed by Judge Alfred V. Covello on March 22, 2017. (Modzelewski, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MALIBU MEDIA, LLC,
plaintiff,
v.
JOHN DOE,
defendant.

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CASE NO. 3:17-cv-00277-AVC

ORDER GRANTING MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE
The plaintiff, Malibu Media LLC, alleges that the
defendant, John Doe, identified only by his IP address,
committed copyright infringement by distributing the plaintiff’s
adult films using BitTorrent, a peer-to-peer file distribution
network.

The plaintiff moves pursuant to Fed R. Civ. P.

26(d)(1) for leave to serve a third-party subpoena on Doe’s
internet service provider (“ISP”) for the limited purpose of
discovering Doe’s identity; only with Doe’s identity will the
plaintiff be able to serve Doe with process and proceed with the
case.

For substantially the reasons set forth in the

plaintiff’s motion and supporting documents, the court GRANTS
the motion, having concluded that the plaintiff has established
good cause for entry of this order.
The plaintiff acknowledges the concerns raised by many
courts around the nation that, given the nature of the films
allegedly distributed by the defendants, they may feel coerced
to settle these suits merely to prevent public disclosure of the
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defendants’ identifying information.1

See, e.g., Malibu Media,

LLC v. Doe, 2015 WL 4092417 (S.D.N.Y.); Malibu Media, LLC v.
Doe, 2015 WL 1780965 (S.D.N.Y.); Malibu Media, LLC v. Doe, 2015
WL 4923114 (S.D.N.Y.).

This court shares these concerns.

This

order is therefore subject to the following conditions and
limitations:
1. The plaintiff may subpoena the defendant’s ISP only
to obtain the defendant’s name and address, but not
the defendant’s e-mail or telephone number. The
plaintiff may only use the defendant’s name and
address, if obtained by the defendant’s ISP, for the
purposes of this litigation; the plaintiff is
ordered not to disclose the defendant’s name or
address, or any other identifying information other
than the defendant’s ISP number, that the plaintiff
may subsequently learn. The plaintiff shall not
threaten to disclose any of the defendant’s
identifying information. The defendant will be
permitted to litigate this case anonymously unless
and until this court orders otherwise and only after
the defendant has had an opportunity to challenge
the disclosure. Therefore, the plaintiff is ordered
not to publicly file any of the defendant’s
identifying information and to file all documents
containing the defendant’s identifying information
under seal.
2. The plaintiff may immediately serve a Rule 45
subpoena on the defendant’s ISP to obtain the
defendant’s name and current and permanent address.
The plaintiff is expressly not permitted to subpoena
the ISP for the defendant’s e-mail addresses or
telephone numbers. The plaintiff shall serve the
defendant’s ISP with a copy of the complaint, this
order, and the subpoena.
3. After having been served with the subpoena, the
ISP will delay producing to the plaintiff the

The plaintiff consents to conditions in this order prohibiting it from
initiating a settlement with the defendant prior to serving him with the
complaint, as well as an order allowing the defendant to proceed anonymously.
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subpoenaed information until after it has provided
the defendant John Doe with:
a. Notice that this suit has been filed naming
the defendant as the one that allegedly
downloaded copyright protected work;
b. A copy of the subpoena, the complaint filed in
this lawsuit, and this order;
and
c. Notice that the ISP will comply with the
subpoena and produce to the plaintiff the
information sought in the subpoena unless,
within 60 days of service of the subpoena on
the defendant by the ISP, the defendant files a
motion to quash the subpoena or for other
appropriate relief in this court. If a timely
motion to quash is filed, the ISP shall not
produce the subpoenaed information until the
court acts on the motion.
4. The defendant’s ISP will have 60 days from the date
of service of the Rule 45 subpoena upon it to serve
the defendant John Doe with a copy of the
complaint, this order, and the subpoena. The ISP
may serve the defendant John Doe using any
reasonable means, including written notice sent to
his or her last known address, transmitted either
by first class mail or via overnight service.
5. The defendant John Doe shall have 60 days from the
date of service of the Rule 45 subpoena and this
order upon him to file any motions with this court
contesting the subpoena (including a motion to
quash or modify the subpoena), as well as any
request to litigate the subpoena anonymously. The
ISP may not turn over the identifying information
of the defendant to the plaintiff before the
expiration of this 60-day period. Additionally,
if the defendant or the ISP files a motion to
quash or modify the subpoena, or a request to
litigate the subpoena anonymously, the ISP may not
turn over any information to the plaintiff until
the issues have been addressed and the court
issues an order instructing the ISP to resume
turning over the requested discovery.
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6. The defendant’s ISP shall preserve any subpoenaed
information pending the resolution of any timely
filed motion to quash.
7. The defendant’s ISP shall confer with the
plaintiff and shall not assess any charge in
advance of providing the information requested in
the subpoena. If the defendant’s ISP receives a
subpoena and elects to charge for the costs of
production, it shall provide a billing summary
and cost report to the plaintiff.
8. Any information ultimately disclosed to the
plaintiff in response to a Rule 45 subpoena may be
used by the plaintiff solely for the purpose of
protecting the plaintiff's rights as set forth in
its complaint.
It is so ordered this 22nd day of March 2017, at
Hartford, Connecticut.
___________/s/______________
Alfred V. Covello,
United States District Judge

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