Malibu Media, LLC v. Doe

Filing 7

ORDER granting 5 Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. (See Order for details.) Signed by Judge James S. Moody, Jr on 11/6/2014. (LN)

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

Case No: 8:14-cv-2340-T-30TBM

JOHN DOE,
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. 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. 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 thirdparty 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. 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-CV18(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. 1, Ex. B)
and that a forensic investigation revealed potential infringement of Plaintiff’s rights in that
work by Defendant (Dkt. 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. 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. 5) is GRANTED.

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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 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), 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, this 6th day of November, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-2340 26f subpoena.docx

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