Malibu Media, LLC v. Does 1-20

Filing 5

ORDER granting in part 4 Motion for Leave to Serve Third Party Subpoenas Prior to Rule 26(f) Conference. (See Order for details.) Signed by Judge James S. Moody, Jr on 8/22/2012. (LN)

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

Case No. 8:12-cv-1823-T-30AEP

JOHN DOES 1-20,
Defendants.
_____________________________________/
ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Leave to Serve
Third Party Subpoenas Prior to a Rule 26(f) Conference (Dkt. 4).

Upon review of the

motion, and being otherwise advised of the premises, the Court concludes that the motion
should be granted in part.
DISCUSSION
Plaintiff filed this action alleging direct and contributory copyright infringement
against twenty unnamed Defendants (“the John Doe Defendants”) for unlawfully
reproducing, distributing, or transmitting a motion picture for which Plaintiff holds the
copyright (Dkt. 1). Plaintiff has identified the Internet Protocol (“IP”) addresses for the John
Doe Defendants from which the allegedly infringing conduct has occurred. Plaintiff’s
motion seeks to issue third-party subpoenas to the John Doe Defendants’ Internet Service
Providers (“ISPs”) to ascertain the John Doe Defendants’ true identities prior to the
scheduling conference required under Rule 26(f), Federal Rules of Civil Procedure.

Typically, absent a court order, a party may not seek discovery from any source before
the Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1). A court may allow expedited discovery
prior to the Rule 26(f) conference upon a showing of good cause, however. Platinum Mfg.
Intern., Inc. v. UniNet Imaging, Inc., 8:08-cv-310-T-27MAP, 2008 WL 927558, at *1 (M.D.
Fla. April 4, 2008); Arista Records LLC v. Does 1-7, 3:08-CV-18(CDL), 2008 WL 542709,
at *1 (M.D. Ga. Feb. 25, 2008); see Fed. R. Civ. P. 26(b) (“For good cause, the court may
order discovery of any matter relevant to the subject matter involved in the action.”).
Here, Plaintiff has established that it holds a copyright for the motion picture entitled
“One Night Stand” (the “Work”) allegedly copied and distributed by the John Doe
Defendants through the use of BitTorrent protocol and that a forensic investigation revealed
potential infringement of Plaintiff’s rights in the Work by the John Doe Defendants (Dkt. 42, Declaration of Tobias Fieser (“Fieser Declaration”)). Plaintiff has clearly identified the
information sought through discovery by identifying the IP addresses of the John Doe
Defendants as well as the “hit date,” city, state, ISP, and network for each IP address, and has
shown that it has no other way to obtain the John Doe Defendants’ true identities. Moreover,
the information Plaintiff seeks is time sensitive because ISPs do not retain user activity logs
for an extended duration. See Fieser Declaration. If Plaintiff does not timely obtain the John
Doe Defendants’ identifying information, Plaintiff may lose its ability to pursue its claims
in this action. As such, Plaintiff has established good cause for proceeding with expedited
discovery prior to the Rule 26(f) conference.

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Although Plaintiff has shown good cause for early discovery, its broad request does
not sufficiently protect against the likelihood that innocent Defendants may be publicly
identified by having their identities associated with allegations of illegal downloading or
adult films. As another court aptly stated,
[T]he ISP subscriber to whom a certain IP address was assigned may not be the
same person who used the Internet connection for illicit purposes. ... By
defining Doe Defendants as ISP subscribers who were assigned certain IP
addresses, instead of the actual Internet users who allegedly engaged in
infringing activity, Plaintiff’s sought-after discovery has the potential to draw
numerous innocent internet users into the litigation, placing a burden upon
them that weighs against allowing the discovery as designed.
SBO Pictures, Inc. v. Does 1–3036, No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal.
Nov. 30, 2011) (internal quotation and citation omitted). Accordingly, procedural protections
are necessary before any identifying information is made public.
It is therefore ORDERED and ADJUDGED that:
1.

Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule
26(f) Conference (Dkt. 4) is GRANTED IN PART.

2.

Plaintiff may serve each of the ISPs, as listed in Exhibit A attached to the
Complaint, with a Rule 45 subpoena commanding them to provide Plaintiff
with the true name, address, telephone number, e-mail address, and Media
Access Control (“MAC”) address of each John Doe Defendant to whom the
ISP assigned an IP address. Plaintiff may also serve a Rule 45 subpoena on
any service provider identified in response to a subpoena as a provider of
internet services to the John Doe Defendants. Plaintiff shall attach a copy of
the Complaint and this Order to any subpoena issued pursuant to this Order.
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3.

Each of the ISPs that qualify as a “cable operator” under 47 U.S.C. § 522(5)1
shall comply with 47 U.S.C. § 551(c)(2)(B), which provides that
A cable operator may disclose [personally identifiable 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.

4.

Until the ISPs disclose the John Doe Defendants’ identities to Plaintiff, any
motion filed by a putative Defendant or his or her counsel which fails to
identify the putative Defendant’s IP address or the putative Defendant’s Doe
Number will be denied without prejudice.

5.

Upon receipt of the requested information in response to a Rule 45 subpoena
served on an ISP, Plaintiff shall only use the information disclosed for the
purpose of protecting and enforcing Plaintiff’s rights as set forth in the
Complaint.

6.

To address potential issues relating to the identity of the John Doe Defendants,
the parties shall adhere to the following procedures:
a.

Plaintiff shall immediately inform each John Doe Defendant who
contacts Plaintiff or whom Plaintiff contacts that said John Doe
Defendant has the right to obtain legal counsel to represent him or her
in this matter and that anything said or provided by the John Doe

1

“The term ‘cable operator’ means any person or group of persons (A) who provides cable service
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[.]” 47 U.S.C. § 522(5).
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Defendant can and likely will be used against him or her in this
proceeding.
b.

Any John Doe Defendant who does not wish to be contacted by
Plaintiff may at any time inform Plaintiff by phone or send Plaintiff’s
counsel a letter or e-mail addressed to [e-mail] that
states: “Please do not contact me (again) prior to serving me in this
matter.”

c.

Plaintiff must notify the John Doe Defendant, or his or her counsel if
represented, of Plaintiff’s intent to name and serve the John Doe
Defendant at least fourteen (14) calendar days prior to seeking issuance
of a summons from the Clerk for the identified John Doe Defendant.

DONE and ORDERED in Tampa, Florida on August 22, 2012.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2012\12-cv-1823.mtsubpoenas4.frm

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