Malibu Media LLC v. John Doe subscriber assigned IP Address 68.36.74.62

Filing 5

OPINION and ORDER Granting Plaintiff's 2 Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by District Judge Linda V. Parker. (RLou)

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

Case No. 18-11189
Honorable Linda V. Parker

JOHN DOE subscriber assigned IP
address 68.36.74.62,
Defendant.
____________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE
26(f) CONFERENCE
On April 14, 2018, Plaintiff Malibu Media, LLC (“Plaintiff”) filed this
lawsuit against an unknown individual alleging copyright infringement based on
the individual’s download and distribution of Plaintiff’s copyrighted adult movies.
Presently before the Court is Plaintiff’s Motion for Leave to Serve a Third Party
Subpoena Prior to a Rule 26(f) Conference, also filed April 14, 2018. (ECF Nos. 2,
3.) Plaintiff filed the motion seeking to serve a subpoena on Internet Service
Provider (“ISP”) Comcast Cable (“hereafter “Comcast” or “ISP”) 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 is granting Plaintiff’s motion with certain conditions imposed.

Plaintiff operates a subscription based website. Plaintiff claims Defendant
downloads and distributes Plaintiff’s copyrighted works, without Plaintiff’s
authorization, permission or consent. IPP International UG, on behalf of Plaintiff,
identified the IP address the individual used to conduct the alleged infringing
activity.
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
110, 119 (2d Cir. 2010) (citing Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp.

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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 the ISP 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 Comcast 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.

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.
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4.

If and when Comcast 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 Comcast 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 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.

IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 16, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, April 16, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

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