Malibu Media, LLC v. Doe

Filing 11

MEMORANDUM AND ORDER DENYING 7 Motion to Quash. Signed by Judge Deborah K. Chasanow on 1/5/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MALIBU MEDIA, LLC
:
v.

:

Civil Action No. DKC 15-1710

:
JOHN DOE
:
MEMORANDUM OPINION AND ORDER
Plaintiff Malibu Media, LLC (“Plaintiff”) filed this action
for copyright infringement against a John Doe defendant (“Doe”).
Presently pending and ready for resolution is a motion to quash
filed by Doe.

(ECF No. 7).

The issues have been briefed, and

the court now rules, no hearing deemed necessary.
105.6.

Local Rule

For the following reasons, the motion to quash will be

denied.
The limited factual background in this case can be found in
a prior order granting Plaintiff’s motion for leave to serve a
third party subpoena.

(See ECF No. 5).

Plaintiff alleges that

a single Doe defendant utilized the BitTorrent file distribution
network

to

download

adult

copyrights held by Plaintiff.
an

Internet

Protocol

address

pornographic

films

subject

to

Plaintiff identified Doe only by
(“IP

address”)

assigned

to

a

customer on a specific date by an Internet Service Provider
(“ISP”).

Accordingly, Plaintiff moved to expedite discovery and

serve a third party subpoena on the ISP prior to a Rule 26(f)
conference in order to obtain the identity of Doe.

On June 12,

2015,

subject

the

undersigned

granted

Plaintiff’s

motion

to

numerous conditions and limitations dictated by the sensitive
nature

of

this

action

and

specificity of IP addresses.

the

uncertainty

surrounding

the

(ECF No. 5).

On July 29, Doe filed the pending motion to quash the third
party subpoena.

(ECF No. 7).

The motion to quash avers that

Doe lives in a large, multiunit apartment complex and uses a
wireless router to access the internet.

The wireless router

was, at times, accessible to individuals not living in Doe’s
apartment
password.

because
In

it

was

addition,

not

Doe

consistently

lives

with

at

secured
least

with

one

a

other

individual.

Thus, Doe contends that “[t]he likelihood that an

individual,

other

than

Doe,

infringed

[on]

Plaintiff’s

copyrights is too great to support any correlation between Doe
and the alleged violation that Plaintiff seeks to prove.”
at 4).
from

(Id.

Doe argues that “the risk of reputational injury . . .
public

exposure

and

association

with

[Plaintiff’s]

allegations . . . is too great and presents an undue burden to
Doe

under

Fed.R.Civ.P.

45(c)(3)(A)(iv).”

(Id.).

Plaintiff

counters that Doe does not face an undue burden because the
subpoena is directed at the ISP, not Doe.

(ECF No. 8, at 2-3).

Plaintiff further contends that the court’s prior order allowing
2

the subpoena includes protections that are sufficient to address
Doe’s concerns regarding anonymity and reputational injury.
Doe’s “argument that the subpoena presents an undue burden
is unavailing because the subpoena is directed toward the ISP[]
and not [Doe] and accordingly does not require [Doe] to produce
any information or otherwise respond.”

Third Degree Films, Inc.

v. Does 1-118, No. 11-cv-03006-AW, 2011 WL 6837774, at *3 (D.Md.
Dec. 28, 2011).

Doe also cannot move successfully to quash the

subpoena by denying liability.

“[I]t is well-settled that such

general

cannot

denials

of

liability

quashing a subpoena.”

serve

as

a

basis

for

Third Degree Films, Inc. v. Does 1-108,

No. DKC-11-3007, 2012 WL 669055, at *3 (D.Md. Feb. 28, 2012)
(citation and internal quotation marks omitted).

“For the court

to quash the subpoena would allow a subscriber to prevent Malibu
from

pursuing

liability.”

a

potentially

valid

claim

simply

by

denying

Malibu Media, LLC v. Doe, No. MJG-14-0747, 2014 WL

7190812, at *2 (D.Md. Dec. 16, 2014).
The court appreciates the potential for undue reputational
harm should Doe’s identity be made public, particularly in light
of the possibility that the alleged copyright violations were
committed by someone other than Doe.

There is also potential

for a plaintiff to use the threat of reputational harm to abuse
these

lawsuits

and

coerce

settlements.

“But

those

concerns

adequately are addressed by the existing interplay of procedural
3

rules and this Court’s order.”
PWG-13-365,
Moreover,

2014

WL

“despite

7188822,

having

Malibu Media, LLC v. Doe, No.
at

*9

dozens

of

(D.Md.
suits

Dec.
in

16,

this

2014).

District,

there is no indication to date that Malibu has failed to comply
with the dictates of the Federal Rules and this Court’s orders,
and

so

currently

there
in

is

no

place

reason
or

to

to

depart

buttress

subscribers that already are in place.”1

from
the

the

procedures

protections

for

Id.

The protections the court outlined in its June 12 Order
protect Doe’s privacy interests and ensure the case does not go
forward improperly.

That order provides that Plaintiff must not

disclose Doe’s identity publicly absent further order form the
court and “may only use it to determine whether, pursuant to
Rule

11(b),

it

has

sufficient

information

to

complaint” to name Doe as an individual defendant.
at 4-5).

amend

the

(ECF No. 5,

Further, “[a]ny amended complaint filed by Malibu

naming an individual defendant shall be filed so that the name
and any specifically identifying information is redacted from

1

This fact distinguishes a case Doe relies on in the motion
to quash.
See In re BitTorrent Adult Film Copyright
Infringement Cases, 296 F.R.D. 80, 89 (E.D.N.Y. 2012) (“The most
persuasive argument against permitting plaintiffs to proceed
with early discovery arises from the clear indicia, both in this
case and in related matters, that plaintiffs have employed
abusive litigation[] tactics to extract settlements from John
Doe defendants, and these tactics distinguish these plaintiffs
from other copyright holders.”).
Here, there is no indication
that Plaintiff is pursuing such tactics.
4

the publically available court docket, with an unredacted copy
filed under seal.”2

(Id. at 5).

In addition, as has become

customary in this district through the adjudication of similar
cases,

Plaintiff

identified
Plaintiff

is

authorized

as

the

subscriber

may

not

conduct

to

to

depose

the

IP

further

the

individual

address.

discovery

Finally,

absent

a

court

order, and Plaintiff is prohibited from engaging in coercive
settlement negotiations.
Accordingly, it is this 5th day of January, 2016, by the
United

States

District

Court

for

the

District

of

Maryland,

ORDERED that:
1.

The motion to quash filed by Defendant John Doe (ECF

No. 7) BE, and the same hereby IS, DENIED;
2.

The

clerk

will

transmit

copies

of

this

Memorandum

Opinion and Order to counsel for the parties.

/s/
DEBORAH K. CHASANOW
United States District Judge

2

Doe also purports to move for “Leave to Proceed
Anonymously.” (ECF No. 7, at 1). This is not necessary because
the June 12 Order continues to grant Doe anonymity.
5