Poplar Oaks, Inc. v. John Doe

Filing 11

ORDER granting 6 Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. SEE ORDER FOR DETAILS. Signed by Judge Sheri Polster Chappell on 12/16/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
POPLAR OAKS, INC.,
Plaintiff,
v.

Case No: 2:14-cv-691-FtM-38DNF

JOHN DOE,
Defendant.
/
ORDER1
This matter comes before the Court on Motion for Leave to Serve a Third Party
Subpoena Prior to a Rule 26(f) Conference (Doc. #6) filed on December 12, 2014. In
support of its motion, Plaintiff Poplar Oaks, Inc. filed a memorandum (Doc. #6-1), a
Declaration of Patrick Paige (Doc. #7; Doc. #10), and a Declaration of Daniel Susac (Doc.
#8).
Standard
Discovery is normally barred prior to the Rule 26(f) conference. Platinum Mfg.
Intern., Inc. v. UniNet Imaging, Inc., No. 8:08-cv-310-T-27MAP, 2008 WL 927558 *1 (M.D.
Fla. Apr. 4, 2008) (citing Fed. R. Civ. P. 26(d)(1) (“A party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f), except . . . when
authorized by these rules, by stipulation, or by court order.”)). A court may allow discovery

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or Web sites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other Web sites, this court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their Web
sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court
accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink
ceases to work or directs the user to some other site does not affect the opinion of the court.

before the Rule 26(f) conference upon a showing of “good cause.” In order to obtain
expedited discovery, the burden is on the moving party to show good cause for departing
from the usual discovery procedures. Platinum Mfg. Intern., 2008 WL 927558 at *1 (citing
Nassau Terminals, Inc. v. M/V Bering Sea, No. 99-104-CIV-J-20C, 1999 WL 1293476
(M.D. Fla. July 1,1999)); Malibu Media, LLC v. Doe, No. 8:13-cv-857-T-35TDW, 2013 WL
1620366, at *1 (M.D. Fla. Apr. 15, 2013).
In Internet infringement cases, courts 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 a prima facie showing of
infringement, there is no other way to identify the Doe Defendant, and there
is a risk an ISP will destroy its logs prior to the conference.
UMG Recording, Inc. v. Doe, No. C 08-193 SBA, 2008 WL 4104214, *4 (N.D. Cal. Sept.
3, 2008) (citations omitted).
Discussion
On November 28, 2014, Poplar Oaks filed this instant copyright infringement action
(Doc. #1) alleging Defendant John Doe is liable for direct copyright infringement in
violation of 17 U.S.C. § 101, et seq. Poplar Oaks has now filed this instant motion seeking
early discovery. Poplar Oaks alleges John Doe used his Internet Protocol (“IP”) to
distribute Poplar Oaks’ copyrighted work. In addition, Poplar Oaks argues John Doe’s IP
address was assigned to him by his respective Internet Service Provider (“ISP”). Poplar
Oaks further asserts that the ISP can use the IP address to identify John Doe.
Consequently, Poplar Oaks requests permission to serve Rule 45 subpoenas on John
Doe’s ISP that will enable Poplar Oaks to discover John Doe’s true name, address,
telephone number, and e-mail address and in turn allow Poplar Oaks to serve process on
John Doe. Finally, Poplar Oaks asserts there is no alternative way for it to discover John

2

Doe’s true identity and Poplar Oaks must learn the true identity of John Doe to proceed
with its case. Upon consideration of the motion and the accompanying exhibits, including
the exhibits affiliated with the Complaint, the Court finds there is good cause to grant
Poplar Oaks’ request. (See Doc. #1, Doc. #5-1; Doc. #5-2; Doc. #6; Doc. #6-1; Doc. #7;
Doc. #8; Doc. #10).
Accordingly, it is now
ORDERED:
1. Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference (Doc. #6) is GRANTED.
a. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the
ISP to provide Plaintiff with the true name, address, telephone number,
and e-mail address of Defendant John Doe to whom the ISP assigned
an IP address as set forth in the motion and exhibits. Plaintiff shall attach
to any such subpoena a copy of the complaint, motion, and this order.
b. Plaintiff may serve a Rule 45 subpoena in the same manner as above
on any service provider that is identified in response to a subpoena as
a provider of Internet services to Defendant.
c. The ISP that qualifies as a “cable operator,” as defined by 47 U.S.C. §
522(5), which states:
the term “cable operator” means any person or
group of persons (A) who provides cable
services over a cable system and directly or
through one or more affiliates owns a significant
interest in such cable system, or (B) who
otherwise controls or is responsible for, through
any arrangement, the management and
operation of such a cable system

3

shall comply with 47 U.S.C. § 551(c)(2)(B), which states:
A cable operator may disclose such [personal
identifying] information if the disclosure is . . . made
pursuant to a court order authorizing such disclosure,
if the subscriber is notified of such order by the person
to whom the order is directed.
d. The subpoenaed ISP shall not require Plaintiff to pay a fee in advance
of providing the subpoenaed information; nor shall the subpoenaed ISP
require Plaintiff to pay a fee for an IP address that is not controlled by
such ISP, or for duplicate IP addresses that resolve to the same
individual, or for an IP address that does not provide the name of a
unique individual, or for the ISP’s internal costs to notify its consumers.
If necessary, the Court shall resolve any disputes between the ISP and
Plaintiff regarding the reasonableness of the amount proposed to be
charged by the ISP after the subpoenaed information is provided to
Plaintiff.
e. Plaintiff may only use the information disclosed in response to a Rule 45
subpoena served on the ISP for the purpose of protecting and enforcing
Plaintiff’s rights as set forth in its Complaint.
2. Plaintiff is warned that it is required to file attachments to its motions and
pleadings in accordance with the Middle District of Florida CM/ECF
Administrative Procedures.2 Plaintiff is expected to comply with the procedures
going forward in this litigation. Failure to comply with the procedures may result

2

The Middle District of Florida CM/ECF Administrative Procedures can be found here:
http://www.flmd.uscourts.gov/cmecf/CM-ECF_ADMINISTRATIVE_PROCEDURES_03-15-07-FINAL.pdf

4

in court sanctions, such as striking pleadings and documents, or court orders
that inadvertently do not reflect all materials affiliated with a motion.
DONE and ORDERED in Fort Myers, Florida this 16th day of December, 2014.

Copies: All Parties of Record

5