MALIBU MEDIA, LCC v. JOHN DOE subscriber assigned IP Address 104.59.141.184

Filing 6

OPINION and ORDER granting Plaintiff's 3 Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by District Judge Linda V. Parker. (JOwe)

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

Case No. 18-cv-10258
Honorable Linda V. Parker

JOHN DOE subscriber assigned IP
address 104.59.141.184,
Defendant.
____________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE
26(f) CONFERENCE
On January 22, 2018, Plaintiff Malibu Media, LLC (“Plaintiff”) filed this
lawsuit against an unknown individual alleging the individual infringes upon
Plaintiff’s copyrights by downloading and distributing Plaintiff’s copyrighted
movies. Presently before the Court is Plaintiff’s Motion for Leave to Serve a Third
Party Subpoena Prior to a Rule 26(f) Conference, filed January 22, 2018. (ECF
No. 2.) Plaintiff filed the motion seeking to serve a subpoena on AT&T Internet
Services (“AT&T”) in order to identify the individual associated with the Internet
Protocol (“IP”) address from which the alleged infringing conduct is being
committed. For the reasons that follow, the Court grants Plaintiff’s motion with
certain conditions imposed.

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Plaintiff operates a subscription based website. (ECF No. 4 at Pg ID 25.)
Plaintiff claims Defendant downloads and distributes Plaintiff’s copyrighted
works, without Plaintiff’s authorization, permission or consent. (Id.) IPP
International UG, on behalf of Plaintiff, has identified the IP address being used by
the individual conducting the alleged infringing activity. (Pelissier Decl. ¶ 18,
ECF N. 4, Ex. A.)
Rule 26(d)(1) of the Federal Rules of Civil Procedure 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) (citing cases); Patrick Collins, Inc. v. Does 1-28, No. 12-13670,
2012 U.S. Dist. LEXIS 124349, at *2 (E.D. Mich. Aug. 31, 2012). 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

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110, 119 (2d Cir. 2010) (citing Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp.
2d 556, 564-65 (S.D.N.Y. 2004)); Arista Records LLC, 551 F. Supp. 2d at 6-7
(citing cases).
Plaintiff establishes that “good cause” exists for it to serve a third-party
subpoena on AT&T 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 Serve
a Third Party Subpoena Prior to a Rule 26(f) Conference, with certain limitations
outlined herein:
1.

Plaintiff may serve immediate discovery on AT&T to obtain the
identity of the Doe Defendant by serving a Rule 45 subpoena
that seeks information sufficient to identify 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 AT&T is served with a subpoena, it shall give
written notice, which may include e-mail notice, to the
subscriber in question within seven (7) days of service of the
subpoena. If AT&T 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.

AT&T 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.

Date: January 30, 2018

s/Linda V. Parker
LINDA V. PARKER
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 29, 2018, by electronic and/or ordinary mail.
s/Julie Owens acting in the absence of Richard Loury
Case Manager