Cobbler Nevada, LLC v. Does 1-15

Filing 5

OPINION AND ORDER Granting Plaintiff's 2 Motion for Leave to Serve--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COBBLER NEVADA, L.L.C.,
Plaintiff,
Case No. 2:15-CV-11871
District Judge Sean F. Cox
Magistrate Judge Anthony P. Patti

v.

DOES 1-15,
Defendants.
___________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO SERVE THIRD-PARTY SUBPOENAS PRIOR TO A RULE
26(f) CONFERENCE (DE 2)
This matter is before the Court for consideration of Plaintiff Cobbler
Nevada, L.L.C.’s Motion for Leave to Serve Third-Party Subpoenas Prior to a Rule
26(f) Conference. (DE 2.) Plaintiff filed suit on May 25, 2015, against fifteen (15)
“Doe” defendants, identified only by the subscriber Internet Protocol (“IP”)
address he or she is alleged to have used to unlawfully download and share
Plaintiff’s copyrighted movie (“The Cobbler”) using BitTorrent software. (DE 1 at
3 ¶ 10, DE 1-2.) On June 16, 2015, Plaintiff filed the instant motion and
memorandum in support, in which it seeks to discover the identities of the Does by
issuing a subpoena on the Internet Service Provider (“ISP”) associated with the
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identified IP addresses. (DEs 2, 3.) For the reasons discussed below, this Motion
is GRANTED.
I.

BACKGROUND
This is a copyright infringement case. Plaintiff Cobbler Nevada, L.L.C.

owns the copyright to The Cobbler, the copyrighted work at issue in this lawsuit.
(DE 1-1.) Plaintiff does not know the names of the Doe Defendants but indicates
that it has identified Defendants through unique IP addresses that were involved in
the alleged infringement. In support of its Motion, Plaintiff provides the affidavit
of Daniel Macek, who has been retained as a consultant by Maverickeye UG
(“MEU”), a company that provides forensic investigation services to copyright
owners. (DE 3-2 at 1 ¶ 2.) Mr. Macek avers that he found persons using
Defendants’ IP addresses engaged in transactions with regard to the copyrighted
work alleged in the Complaint. (DE 3-2 at 4-5 ¶¶ 19, 25.)
II.

ANALYSIS
Federal Rule of Civil Procedure 26(d)(1) provides:
A party may not seek discovery from any source before the parties
have conferred as required by Rule 26(f), except in a proceeding
exempted from initial disclosure under Rule (1)(B), or when
authorized by these rules, by stipulation, or by court order.

Fed. R. Civ. P. 26(d)(1) (emphasis added). Although the United States Court of
Appeals for the Sixth Circuit has not addressed the standard to be applied in such
instances, courts in this district have applied a “good cause” standard to determine
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whether such expedited discovery should be authorized. See Malibu Media, LLC
v. Doe, No. 14-14237, 2015 WL 224807, at *1 (E.D. Mich. Jan 15, 2015). This
issue arises not infrequently in copyright infringement cases where the identity of
the infringer is not known. See Arista Records, LLC v. Doe 3, 605 F.3d 110 (2nd
Cir. 2012).
Courts have further developed the “good cause” standard. Specifically, in
copyright cases, the court considers the following factors to determine whether the
issuance of subpoenas to discover the identity of Doe defendants in advance of a
Rule 26(f) conference is proper: (1) whether the plaintiff has made a prima facie
showing of a copyright infringement claim; (2) whether the plaintiff has submitted
a specific discovery request; (3) whether the information sought is limited in scope
and not available through alternative means; (4) whether plaintiff has a central
need for the subpoenaed information; and (5) whether there is minimal expectation
of privacy on the part of the defendant. Arista Records, 604 F.3d at 119; Patrick
Collins v. Does 1-21, Case No. 11-15232, DE 5 (E.D. Mich. Dec. 16, 2011).
Having reviewed the pleadings and the instant Motion, the Court finds that
Plaintiff has demonstrated good cause for early discovery. It has stated a plausible
claim for copyright infringement and specifically identified the discovery sought –
“the true name and address of the Defendant to whom the ISP assigned an IP
address . . . .” as set forth in Exhibit B. (DE 2-1 at 1 ¶ 2, DE 3 at 11). The Court
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also finds that defendants do not have a reasonable expectation of privacy in their
internet subscriber information. See Hard Drive Prods. v. Doe, No. 11-9062, 2012
U.S. Dist. Lexis 82927, at *10-11 (N.D. Ill. June 14, 2012). Furthermore, the
information sought is: (a) necessary to prosecute Plaintiff’s claim; (b) otherwise
unavailable; and (c) narrowly tailored.
III.

CONCLUSION
Accordingly, Plaintiff’s Motion (DE 3) is GRANTED subject to the

following modifications:
1.

Plaintiff shall attach a copy of this Order to the subpoena it
issues to each Doe’s ISP.

2.

Plaintiff’s subpoena to the ISP may seek only the following
information regarding John/Jane Doe:
a.
b.

Full name, and
Residential address.1

3.

Within seven days of its receipt of the subpoena, the ISP shall
reasonably attempt to identify the subject John/Jane Doe
subscriber and provide him or her with a copy of the subpoena
and this Order.

4.

Nothing in this Order precludes the ISP or John/Jane Doe from
challenging the subpoena consistent with the Federal Rules of
Civil Procedure and this Court’s local rules. However, any
such challenge, such as a motion to quash the subpoena or a
motion for a protective order, shall be filed before the return
date of the subject subpoena, and the return date shall be no

1

See, e.g., Malibu Media LLC v. John Doe, No. 13-10511, DE 7 (E.D. Mich. Feb.
26, 2013) (concluding that Plaintiff was not permitted to seek or obtain John Doe’s
email address or telephone number).
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earlier than thirty-five days from the service of the subpoena on
the ISP. See Third Degree Films v. Does 1-47, No. 12-10761,
2012 WL 4498911, at *1 (D. Mass. Oct. 2, 2012) (issuing a
subpoena with provision for motion practice before production
of information). Where no motion is filed by either the ISP or
John/Jane Doe within the time periods prescribed herein, the
ISP shall produce to Plaintiff the information identified in
Paragraph 2(a) and (b) above.
5.

Plaintiff and any entity that receives a subpoena shall confer, if
necessary, with respect to the issue of payment for the
information requested in the subpoena or for resolution of the
IP address if it is not controlled by such entity, duplicate IP
addresses that resolve to the same individual, or for the entity’s
internal costs to notify its customers.

6.

Any entity that receives a subpoena and elects to charge for the
costs of production, shall provide a billing summary and any
cost reports that serve as a basis for the billing summary, along
with any other costs claimed.

7.

Plaintiff may only use the information disclosed in response to
a Rule 45 subpoena served on an ISP for the purposes of
protecting and enforcing Plaintiff’s rights as set forth in its
Complaint.

IT IS SO ORDERED.

Dated: July 14, 2015

s/Anthony P. Patti
ANTHONY P. PATTI
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on July 14, 2015, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
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