MANNY FILM LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 50.166.93.53
Filing
6
MEMORANDUM OPINION AND ORDER granting 5 Motion seeking Leave to conduct expedited Discovery. ORDERED that Plaintiff may serve a subpoena issued to Comcast Cable that is limited to requesting the name and address of the subscriber of the IP address identified in each complaint, etc.. Signed by Magistrate Judge Ann Marie Donio on 4/1/2015. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MANNY FILM LLC,
Civil No. 15-1530 (JHR/AMD)
[Doc. No. 5]
Plaintiff,
v.
JOHN DOE SUBSCRIBER ASSIGNED
IP ADDRESS 50.166.88.98,
Defendant.
MANNY FILM LLC,
Civil No. 15-1531 (JHR/AMD)
[Doc. No. 5]
Plaintiff,
v.
JOHN DOE SUBSCRIBER ASSIGNED
IP ADDRESS 50.166.93.53
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court by way of Plaintiff
Manny Film LLC’s (hereinafter, “Plaintiff”) motions for leave to
conduct expedited discovery in Civ. Nos. 15-1530 and 15-1531.
(See Motion for Leave to Serve a Subpoena Prior to Rule 26(f)
Conference, Civ. No. 15-1530, [Doc. No. 5]; see also Motion for
Leave to Serve a Subpoena Prior to Rule 26(f) Conference, Civ.
No.
15-1531,
[Doc.
No.
5].)
The
1
Court
has
considered
the
submissions and notes that no opposition has been filed and the
time
within
which
to
file
opposition
has
expired.
The
Court
decides this matter pursuant to Federal Rule of Civil Procedure
78(b), and for the reasons set forth herein, grants Plaintiff’s
motions to
serve
subpoenas
prior
to
a
Rule
26(f)
conference
subject to the notice provision set forth herein.
On March 2, 2015, Plaintiff filed a complaint against
Defendant John Doe Subscriber Assigned IP Address 50.166.88.98
(see Complaint, Civ. No. 15-1530, [Doc. No. 1]), and a complaint
against
Defendant
John
Doe
Subscriber
Assigned
IP
Address
50.166.93.53 (see Complaint, Civ. No. 15-1531, [Doc. No. 1])
alleging claims of direct copyright infringement against both
John Doe Defendants. Specifically, in both complaints Plaintiff
alleges that it possesses the rights to “the copyright to the
film ‘Manny[,]’ . . . a feature length documentary depicting the
life of boxing champion Manny Pacquiao.” (See Complaint, Civ.
Nos. 15-1530 and 15-1531, [Doc. No. 1], ¶ 11.) Plaintiff asserts
that
“[i]n
November
of
2014”
Manny
“was
leaked
on
to
the
BitTorrent peer-to-peer file sharing network in advance of its
U.S.
theatrical
release
date
of
January
23,
2015.”
(See
Complaint, Civ. Nos. 15-1530 and 15-1531, [Doc. No. 1], ¶ 16.)
Plaintiff further asserts that it subsequently identified the
John
Doe
Defendants
by
their
IP
addresses
as
having
used
BitTorrent protocol to engage in direct copyright infringement
2
by downloading the film and “cop[ying] and distribut[ig] the
constituent elements of the copyrighted work.” (See Complaint,
Civ. Nos. 15-1530 and 15-1531, [Doc. No. 1], ¶ 39.) On March 12,
2015, Plaintiff filed the pending motions in both cases seeking
leave
to
provide
file
the
a
third-party
names
and
subpoena
addresses
of
upon
the
Comcast
John
Doe
Cable
to
internet
subscribers identified in the complaints. 1 (See Motion for Leave
to Serve a Subpoena Prior to Rule 26(f) Conference, Civ. No. 151530,
[Doc.
No.
5];
see
also
Motion
for
Leave
to
Serve
a
Subpoena Prior to Rule 26(f) Conference, Civ. No. 15-1531, [Doc.
No. 5].)
In the pending motions, 2 Plaintiff alleges that both
John
Doe
Defendants
used
“the
BitTorrent
file
distribution
network[] to commit direct copyright infringement.” (See, e.g.,
Memorandum of Law in Support of Plaintiff’s Motion for Leave to
Serve a Third Party Subpoena Prior to a Rule 26(f) Conference,
Civ. No. 15-1530, [Doc. No. 5-1].) Plaintiff contends that it is
aware of only the IP addresses of the John Doe Defendants and
cannot
obtain
their
true
identities
1
and
pursue
the
actions
Plaintiff has attached to the pending motions an exhibit
indicating that it has filed forty-one (41) cases in this
District
in
connection
with
BitTorrent
activity.
(See
Certification of Related Cases, Civ. Nos. 15-1530 and 15-1531,
[Doc. No. 5-6].)
2
As Plaintiff filed identical motions in Civ. Nos. 15-1530 and
15-1531, for ease of reference the Court shall cite only to
Plaintiff’s memoranda of law in support of the pending motion in
Civ. No. 15-1530.
3
without expedited discovery aimed at ascertaining the allegedly
infringing
Plaintiff
parties’
identities.
consequently
requests
(Id.
at
5
on
leave
to
serve
the
a
docket.)
third-party
subpoena upon Comcast Cable requesting the name and address of
each John Doe Defendant. (Id.)
Pursuant to Federal Rule of Civil Procedure 26(b)(1),
“[p]arties
may
obtain
discovery
regarding
any
nonprivileged
matter that is relevant to any party's claim or defense[.]” FED.
R. CIV. P. 26(b)(1). As further set forth in Rule 26(b)(1),
“[f]or good cause, the court may order discovery of any matter
relevant
to
the
subject
matter
involved
in
the
action.”
Id.
Notwithstanding the permissive language of Rule 26(b)(1), “[a]
party may not seek discovery from any source before the parties
have conferred as required by Rule 26(f)[.]” 3 FED. R. CIV. P.
26(d)(1).
A
good
cause
standard
governs
whether
to
permit
discovery prior to a Rule 26(f) conference. See, e.g., Modern
Woman, LLC v. Does 1-X, No. 12-4859, 2013 WL 707908, at *2
(D.N.J. Feb. 26, 2013) (“Courts faced with motions for leave to
serve expedited discovery requests to ascertain the identity of
John
Doe
defendants
in
internet
3
copyright
infringement
cases
Federal Rule of Civil Procedure 26(f)(1) provides that,
“[e]xcept in a proceeding exempted from initial disclosure under
Rule 26(a)(1)(B) or when the court orders otherwise, the parties
must confer as soon as practicable—and in any event at least 21
days before a scheduling conference is to be held or a
scheduling order is due under Rule 16(b).” See FED. R. CIV. P.
26(f)(1).
4
often apply the ‘good cause’ test.”) (citations omitted); see
also Good Man Prod., Inc. v. Doe, No. 14-7906, 2015 WL 892941,
at *2 (D.N.J. Mar. 2, 2015) (applying the good cause standard to
a request for leave to serve discovery prior to a Rule 26(f)
conference).
The
Court
has
previously
addressed
the
question
of
whether a plaintiff could serve expedited discovery to ascertain
an internet subscriber’s personal identifying information prior
to
a
Rule
copyright
26(f)
conference
infringement
in
through
a
matter
the
use
involving
of
the
claims
of
BitTorrent
protocol. 4 See Malibu Media, LLC v. John Does 1-18, No. 12-7643,
2013 Dist. LEXIS 155911 (D.N.J. Mar. 22, 2013). In Malibu Media,
LLC,
the
Court
concluded
that
good
cause
existed
“to
permit
limited discovery prior to the Rule 26(f) conference.” Id. at
*7. The Court found that the name and address of an internet
subscriber whose IP address had been identified as allegedly
engaging
in
copyright
infringement
in
the
complaint
was
relevant, and permitted the plaintiff to serve a third-party
subpoena upon Comcast Cable requesting the internet subscriber’s
name and address. Id. at **7-8.
4
The BitTorrent protocol “has been set forth in detail by
numerous other courts and need not be repeated herein.” Malibu
Media, LLC v. John Does 1-18, No. 12-7643, 2013 Dist. LEXIS
155911, at *2 (D.N.J. Mar. 22, 2013) (setting forth cases
describing the BitTorrent protocol) (citations omitted).
5
Similarly, here, the Court finds good cause to permit
Plaintiff to engage in expedited discovery prior to the Rule
26(f) conference. The discovery of the names and addresses of
the internet subscribers whose IP addresses are identified in
the
complaints
is
appropriate
under
Federal
Rule
of
Civil
Procedure 26(b)(1). See, e.g., Malibu Media, LLC, Civ. No. 127643, [Doc. No. 13] at 6 (D.N.J. Mar. 22, 2013). Without this
discovery, Plaintiff’s ability to pursue the direct infringement
claims asserted in the complaint against the John Doe Defendants
would be “severely limited[.]” Id.; see, e.g., Good Man Prod.,
LLC,
No.
14-7906,
2015
WL
892941
at
*2
(finding
good
cause
existed to permit expedited discovery in light of the fact such
discovery was necessary to allow the plaintiff to “identify the
appropriate
[a]mended
defendant[]
[c]omplaint.”).
and
to
effectuate
Consequently,
the
service
Court
of
finds
the
that
Plaintiff may serve the third-party subpoenas upon Comcast Cable
requesting the names and addresses of the internet subscribers
for the IP addresses identified in the complaints in Civ. Nos.
15-1530 and 15-1531. 5
However, in the Court’s prior order on this issue, the
Court balanced the interests of the plaintiff against those of
5
Under 47 U.S.C. § 551(c)(2)(B), such personally identifiable
information is discoverable from a cable provider if "made
pursuant to a court order authorizing such disclosure, if the
subscriber is notified of such order by the person to whom the
order is directed[.]" 47 U.S.C. § 551(c)(2)(B).
6
the John Doe in light of the fact that discovery of the identity
of the internet subscriber may not equate with discovery of the
identity of the infringing party. See Malibu Media, LLC, No. 127643, 2013 Dist. LEXIS, 155911 at **8-9. As this Court stated,
discovering
the
identity
of
the
internet
subscriber may not equate to discovering the
identity of the infringing party. Establishing
that the person identified by discovery is the
person who infringed upon the copyright will
likely require additional proofs beyond the
fact that the individual is listed as the
subscriber on the account from which the
infringing activity originated.
See Modern
Woman, LLC, 2013 WL 707908, at *5 n.4 (noting
that, by permitting discovery of the personally
identifiable information, the court did not
permit
plaintiff
to
rely
solely
on
that
discovery
to
prove
that
the
subscriber
committed the acts alleged in the complaint);
Next Phase Distribution, 284 F.R.D. at 172
(noting
the
"high
likelihood"
that
the
requested
discovery
could
lead
to
"false
positives" as to the identity of the alleged
infringer.)
Id. at **7-8. The Court required the internet service provider
to provide notice to the subscriber in order to provide the
subscriber an opportunity to challenge the subpoena before the
internet subscriber provided information in accordance with the
subpoena. 6 Id. at **9-10 (citing Next Phase Distrib., Inc., 284
6
In Malibu Media, LLC, the Court prohibited the third-party
subpoena from including a request for the internet subscriber’s
phone number and email address. Malibu Media, LLC, No. 12-7643,
2013 U.S. Dist. LEXIS 155911 at *9. Plaintiff’s third-party
subpoena does not seek such information; rather, it is limited
only to seeking the names and addresses associated with the IP
7
F.R.D. 165, 172 (S.D.N.Y. 2012)). Accordingly, pursuant to the
protocol
set
forth
by
this
Court
in
Malibu
Media,
LLC,
the
internet service provider is directed to “provide the internet
subscriber with a copy of this Order and a copy of the subpoena
received from [p]laintiff. Upon receipt of this Order and the
subpoena,
the
internet
subscriber
shall
have
twenty-one
(21)
days to quash the subpoena or move in the alternative for a
protective order." Id. at **9-10. In addition, Comcast Cable
shall not provide any responsive information to Plaintiff "until
the
latter
of
the
expiration
of
twenty-one
(21)
days
or
resolution of any motion to quash or for a protective order."
Id. at *10. Consequently, for the foregoing reasons and for good
cause shown,
IT IS on this 1st day of April 2015:
ORDERED
that
Plaintiff’s
motions
seeking
leave
to
conduct expedited discovery [Doc. No. 5 in Civ. Nos. 15-1530 and
15-1531] shall be, and is hereby GRANTED; and it is further
ORDERED that Plaintiff may serve a subpoena issued to
Comcast Cable that is limited to requesting the name and address
of
the
subscriber
of
the
IP
address
identified
in
each
complaint; and it is further
addresses identified
Subscribers.
in
the
complaints
8
as
the
John
Doe
ORDERED
that
Comcast
Cable
shall
provide
each
such
internet subscriber with a copy of this Order and a copy of any
subpoena Comcast Cable receives from Plaintiff in each matter;
and it is further
ORDERED
identified
as
twenty-one
(21)
that
John
the
each
internet
Doe Subscriber in
days
from
the
subscriber
each
receipt
action
of
this
currently
shall
Order
have
and
the subpoena to object to or move to quash the subpoena; and
it is further
ORDERED that Comcast Cable shall not respond to any
subpoena
served
in
these
cases
until
the
latter
of
the
expiration of the twenty-one (21) day period set forth above or
resolution of a motion to quash or for a protective order.
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc: Hon. Joseph H. Rodriguez
9
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