Malibu Media, LLC v. John Doe

Filing 12

ORDER denying 10 Defendant's Motion to Quash or Modify Subpoena. Signed by Magistrate Judge Carol Mirando on 6/24/2014. (ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.

Case No: 2:14-cv-154-FtM-29CM

JOHN DOE,
Defendant.
ORDER
Before the Court is Defendant’s Motion to Quash or Modify Subpoena (Doc. 10),
filed on May 30, 2014, and Plaintiff’s Memorandum in Opposition to Defendant’s
Motion to Quash or Modify Subpoena (Doc. 11), filed on June 13, 2014. At the outset,
the Court notes that Defendant’s Motion contains a request that the Court permit the
filing of the pro se Motion anonymously. Doc. 10 at 1. The Court will accept the
Motion as filed.

I.

Background

This is a copyright infringement action in which Plaintiff Malibu Media, LLC
(“Malibu”) alleges the John Doe Defendant is liable for direct infringement of
Plaintiff’s copyrighted works.

Doc. 1.

Specifically, Plaintiff contends that

Defendant violated Plaintiff’s exclusive rights to reproduce, redistribute, perform and
display works for which Plaintiff owns exclusive copyrights. Id. at 5-6. After filing
the Complaint, Plaintiff moved for leave to serve a Rule 45 subpoena on the third
party internet service provider (“ISP”) (Doc. 3), seeking the true name, address,

telephone number, and e-mail address of the person to whom the ISP assigned the
address allegedly responsible for the infringement. Doc. 3 at 4. On April 15, 2014,
the Court granted Plaintiff’s motion and permitted a Rule 45 subpoena to be served
on the ISP. Doc. 5.
Defendant now moves to quash the subpoena on grounds that the information
sought from the third party subpoena—the name, address and telephone number of
the person to whom the IP address is assigned—is not capable of identifying the
person who allegedly committed the infringement.

Doc. 10 at 2-3.

Defendant

further argues that the IP address “cannot be traced to a single person as it
represents a gateway through which many users connect and receive data” and
“cannot be used as the basis of identifying a Defendant for the purposes of the
Plaintiffs [sic] lawsuit.” Id. at 3.

II.

Discussion
a. Issuance of the Third Party Subpoena

Generally, the Court must find good cause to permit service of third party
subpoenas seeking to obtain information that will identify a then-unknown
defendant.

See, e.g., Malibu Media, LLC v. Doe, No. 13-21579-CIV, 2013 WL

2950593, *1 (S.D. Fla. June 14, 2013) (finding that “Plaintiff has established that
good cause exists for it to serve a third-party subpoena on Comcast Cable, the ISP
identified in the complaint, because a Rule 45 subpoena to John Doe’s ISP is the only
way in which Plaintiff can identify John Doe and thus move forward with the case”).
Once a subpoena has been issued, a party may move, pursuant to Rule 45, Federal

-2-

Rules of Civil Procedure, to quash the subpoena and may move for a protective order
pursuant to Rule 26.
Courts in internet infringement cases “routinely find good cause exists to issue
a Rule 45 subpoena to discover a Doe defendant’s identity, prior to a Rule 26(f)
conference, where a plaintiff makes: (1) a prima facie showing of infringement, (2)
there is no other way to identify the Doe Defendant, and (3) there is a risk an ISP will
destroy its logs prior to the conference.” UMG Recording, Inc. v. Doe, No. C 08-1193
SBA, 2008 WL 4104241, *4 (N.D. Cal. Sept. 3, 2008). Thus, “[b]y requiring plaintiffs
to make out a prima facie case of infringement, the standard requires plaintiffs to
adduce evidence showing that their complaint and subpoena are more than a mere
fishing expedition.” London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 175 (D.
Mass. 2008).
In a similar case brought by Malibu, this Court found that the UMG Recording
factors were satisfied because Malibu asserted that it held the copyrights and
produced evidence the copyrights were being infringed; demonstrated that it lacked
any other means to obtain the subpoenaed information; stated that it was possible
certain information needed to correlate the subscriber information to a particular
address would only be retained by the ISP for a limited time; sufficiently described
the John Does by listing their ISP addresses during the relevant time periods; and
established that Plaintiff’s interest in protecting its copyrights outweighed the
defendants’ expectation of privacy in their subscriber information.

See Malibu

Media, LLC v. John Does 1-13, No. 2:12-cv-00177-FtM-29SPC, 2012 WL 3062138, *4

-3-

(M.D. Fla. June 6, 2012) (applying the above factors and recommending the motion
to quash be denied), remanded on other grounds by 2012 WL 3095067 (M.D. Fla. July
26, 2012).
Plaintiff’s Complaint (Doc. 1) asserts that Plaintiff is the registered owner of
the copyrights-in-suit, and by its Motion for Leave to Serve a Third Party Subpoena
Prior to a Rule 26(f) Conference (Doc. 3) and accompanying memorandum of law,
Plaintiff has established that no other means exist to obtain the information; that the
ISP maintains its subscriber identification logs for only short periods of time; that
the information is necessary to prosecute its claim for copyright infringement; and
that its interest in obtaining the identifying information outweighs Defendant’s
interests in remaining anonymous. Rule 26(d) provides that courts may authorize
discovery in advance of a Rule 26(f) conference for the convenience of witnesses or the
parties, and in the interests of justice, and in this case the Court found the requisite
good cause to permit Plaintiff to serve the third party subpoena. Doc. 5; Fed. R. Civ.
P. 26(d).

b. Quashing a Subpoena
Plaintiff is entitled to seek discovery of any relevant, non-privileged matter.
Fed. R. Civ. P. 26(b)(1).

Information is “relevant” for Rule 26 purposes when it

“appears reasonably calculated to lead to the discovery of admissible evidence.” Id.
Thus, the identifying information of the person to whom the ISP assigned the IP
address responsible for the alleged infringement is both relevant and discoverable.

-4-

See Malibu Media v. John Does 1-9, No. 8:12-cv-669-SDM-AEP (M.D. Fla. July 6,
2012) (Doc. 25 at 4).
Rule 45, Federal Rules of Civil Procedure, provides the grounds on which a
court may quash a subpoena. That Rule states, in relevant part:
(A) When required. On timely motion, the court for the
district where compliance is required must quash or
modify a subpoena that:
(i)

fails to allow a reasonable time to
comply;

(ii)

requires a person to comply beyond the
geographical limits specified in Rule
45(c);

(iii)

requires disclosure of privileged or
other protected matter, if no exception
or waiver applies; or

(iv)

subjects a person to undue burden.

(B) When permitted. To protect a person subject to or
affected by a subpoena, the court for the district where
compliance is required may, on motion, quash or
modify the subpoena if it requires:
(i)

disclosing a trade secret or other
confidential research, development, or
commercial information

(ii)

disclosing an unretained expert’s
opinion or information that does not
describe specific occurrences in dispute
and results from the expert’s study that
was not requested by a party.

Fed. R. Civ. P. 45(d)(3)(A)-(B). Defendant does not argue, and has not shown, that
any of the grounds set forth in Rule 45 upon which a court may quash a subpoena are
present.

-5-

III.

Conclusion

The Court previously found good cause to grant the issuance of a third party
subpoena, which will allow the ISP to provide Plaintiff with information that is both
relevant and discoverable. Defendant’s bare assertions that the information may
not lead to the alleged infringer are not sufficient bases upon which the Court may
quash the subpoena.
ACCORDINGLY, it is hereby
ORDERED:
Defendant’s Motion to Quash or Modify Subpoena (Doc. 10) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 24th day of June, 2014.

Copies:
Counsel of record

-6-