Malibu Media, LLC v. John Doe
Filing
7
ORDER: Plaintiff's Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference 5 is GRANTED. (See Order for further details.) Signed by Judge James S. Moody, Jr on 5/2/2014. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.
Case No. 8:14-cv-876-T-30AEP
JOHN DOE subscriber assigned IP address
75.115.53.7,
Defendant.
/
ORDER
This cause comes before the Court upon Plaintiff’s Motion for Leave to Serve a Third
Party Subpoena Prior to a Rule 26(f) Conference (Dkt. No. 5). Plaintiff filed this action alleging
direct copyright infringement against Defendant for unlawfully copying and distributing original
works for which Plaintiff holds the copyright (Dkt. No. 1). Plaintiff has identified the Internet
Protocol (“IP”) address for Defendant from which the allegedly infringing conduct has occurred.
By the instant motion, Plaintiff seeks to issue a third-party subpoena to Defendant’s Internet
Service Provider (“ISP”) to ascertain Defendant’s true identity prior to the scheduling conference
required under Rule 26(f), Federal Rules of Civil Procedure (Dkt. No. 5).
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. See Platinum Mfg. Intern.,
Inc. v. UniNet Imaging, Inc., 8:08-cv-310-T-27MAP, 2008 WL 927558, at *1 (M.D. Fla. Apr.
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); Fed. R. Civ. P. 26(b)(1) (“For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action.”).
Plaintiff established that it holds a copyright for multiple original works allegedly copied
and distributed by Defendant through the use of BitTorrent protocol (Dkt. No. 1, Ex. B) and that
a forensic investigation revealed potential infringement of Plaintiff’s rights in that work by
Defendant (Dkt. No. 5, Ex. C). Plaintiff has clearly identified the information sought through
discovery by identifying the IP address of Defendant as well as the hit date, time, title of the
works, ISP, and file hash values for the IP address (Dkt. No. 1, Ex. A) and shown that it has no
alternative means to obtain Defendant’s true identity and thus needs the subpoenaed information
to properly advance its asserted claims in this action. Moreover, the information Plaintiff seeks
is time sensitive because ISPs do not retain user activity logs for an extended duration. See
Arista Records, 3:08-CV-18(CDL), 2008 WL 542709, at *1. If Plaintiff does not timely obtain
Defendant’s identifying information, Plaintiff may lose its ability to pursue its claims in this
action. Accordingly, Plaintiff has established good cause for proceeding with expedited
discovery prior to the Rule 26(f) conference. After consideration, therefore, it is hereby
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference (Dkt. No. 5) is GRANTED.
2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding it to provide
Plaintiff with the true name, address, telephone number, and e-mail address of Defendant.
Plaintiff may also serve a Rule 45 subpoena on any service provider identified in response to a
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subpoena as a provider of internet services to Defendant. Plaintiff shall attach a copy of the
Complaint and this Order to any subpoena issued pursuant to this Order.
3. If the ISP qualifies as a “cable operator” under 47 U.S.C. § 522(5),1 it 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. 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.
DONE and ORDERED in Tampa, Florida on May 2, 2014.
cc: Counsel of Record
S:\Even\2014\14-cv-876-pre-Rule 26 subpoenas.wpd
1
“[T]he 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[.]” Id.
3
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