Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 24.11.94.45

Filing 6

Amended OPINION and ORDER Granting Plaintiff's 2 Motion for Leave to File Subpoena Prior to Rule 26(f) Conference. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.

Case No. 14-12412
Honorable Linda V. Parker

JOHN DOE subscriber assigned IP
address 24.11.94.45,
Defendant.
____________________________________/
AMENDED OPINION AND ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO FILE SUBPOENA PRIOR TO RULE 26(f) CONFERENCE

On June 20, 2014, Plaintiff Malibu Media, LLC (“Plaintiff”) filed this
lawsuit against an unknown individual alleging that the individual infringed
Plaintiff’s copyrights when the individual downloaded, copied, and distributed
Plaintiff’s copyrighted movies. Presently before the Court is Plaintiff’s Motion for
Leave to File Subpoena Prior to Rule 26(f) Conference, filed June 20, 2014.
Plaintiff filed the motion seeking to serve subpoenas on Internet Service Provider
Comcast Cable in order to identify the individual associated with the Internet
Protocol (“IP”) address from which the alleged infringing conduct was committed.
See Pl.’s Mot. Ex. C. For the reasons that follow, the Court grants Plaintiff’s
motion with certain conditions imposed.

Plaintiff operates a subscription based website. See Pl.’s Mot. 3. Plaintiff
claims the unknown individual’s IP address has been habitually used to infringe
Plaintiff’s copyrighted works. See Pl.’s Mot. 3–4. Plaintiff asserts it used
geolocation technology to determine the IP address being used by the individual
conducting the alleged infringing activity, and determined that the individual was
using the internet systems of Comcast Cable. Pl.’s Mot. 2; see also Compl. Ex. A.
Federal Rule of Civil Procedure 26(d)(1) prohibits the propounding of
discovery prior to a Rule 26(f) conference, except in limited circumstances not
applicable here or when authorized by court order. A number of courts have
applied a “good cause” standard to determine whether such discovery should be
authorized. See, e.g., Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 6
(D.D.C. 2008). In copyright infringement cases like the present one, courts
routinely find good cause to permit discovery in advance of a Rule 26(f)
conference to identify the defendants where: (1) the plaintiff makes a prima facie
showing of a copyright infringement claim; (2) the plaintiff submits a specific
discovery request; (3) the information sought is limited in scope and not available
through alternative means; (4) there is a central need for the subpoenaed
information; and (5) there is a minimal expectation of privacy on the part of the
defendant. See Arista Records, LLC v. Doe, 604 F.3d 110, 119 (2d Cir. 2010)

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(citing Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 565 (S.D.N.Y.
2004)); Arista Records LLC, 551 F. Supp. at 6–7.
Plaintiff establishes that “good cause” exists for it to serve third-party
subpoenas on Comcast Cable in advance of a Rule 26(f) conference. Plaintiff
makes a prima facie showing of a claim of copyright infringement, submits a
specific discovery request, establishes that there are no alternative means to obtain
the information that its seeks through the discovery, establishes a central need for
the information, and Defendant has a minimal expectation of privacy.
It is clear to the Court that Defendant must be identified before this suit can
progress further.
For these reasons, the Court GRANTS Plaintiff’s Motion for Leave to File
Subpoena Prior to Rule 26(f) Conference, with certain limitations outlined
herein:
1.

Plaintiff may serve immediate discovery on Comcast Cable to
obtain the identity of the Doe Defendant by serving a Rule 45
subpoena that seeks information sufficient to identify the
Defendant, including the individual’s name and current (and
permanent) addresses. Disclosure of the information requested
is ordered pursuant to 47 U.S.C. § 551(c)(2)(B), which
authorizes cable operators to disclose personally identifiable
information when the cable operators are ordered to do so by a
court.

2.

Plaintiff shall attach a copy of this Opinion and Order to each
subpoena that it issues.

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3.

Any information disclosed to Plaintiff in response to the Rule
45 subpoena may be used by Plaintiff solely for the purpose of
protecting Plaintiff’s rights as set forth in the Complaint.

4.

If and when Comcast Cable is served with a subpoena, it shall
give written notice, which may include e-mail notice, to the
subscribers in question within seven (7) days of service of the
subpoena. If Comcast Cable and/or Defendant wants to file a
motion in response to the subpoena, the party must do so before
the return date of the subpoena, which shall not be less than
thirty (30) days from the date of such written notice.

5.

Comcast Cable shall not produce the information requested
before the return date of the subpoena or the resolution of any
timely filed motion challenging the subpoena, whichever occurs
later.

SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: August 5, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, August 5, 2014, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

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