MALIBU MEDIA, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 174.57.255.114

Filing 11

ORDER granting 4 Motion Motion Seeking Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference etc. Signed by Magistrate Judge Joel Schneider on 10/2/18. (dd, )

[Doc. No. 4]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MALIBU MEDIA, LLC,
Plaintiff,
v.

Civil No. 18-8035 (RBK/JS)

JOHN DOE SUBSCRIBER ASSIGNED
IP ADDRESS 174.57.255.114
Defendant.

O R D E R
This matter is before the Court on the “Motion Seeking Leave
to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference”
(“Motion”) [Doc. No. 4] filed by plaintiff, Malibu Media, LLC.
Plaintiff’s motion alleges the John Doe defendant assigned to IP
address

174.57.255.114

infringed

its

copyrighted

works.

Plaintiff’s only identifying information for defendant is the IP
address. Accordingly, plaintiff seeks limited discovery in advance
of the Fed. R. Civ. P. 26(f) conference so that plaintiff may
obtain defendant’s name and address from his or her internet
service provider (“ISP”), Comcast Cable Holdings, LLC (“Comcast”).
The Court exercises its discretion to decide plaintiff’s motion
without oral argument. See Fed. R. Civ. P. 78; L. Civ. R. 78.1.
For the reasons to be discussed, plaintiff’s motion is GRANTED.

1

Background
Plaintiff holds the copyright to a multitude of adult films
and content. See Decl. of Collette Pelissier, Ex. A [Doc. No. 45]. Plaintiff alleges defendant used a file distribution network
known as BitTorrent to copy and distribute plaintiff’s copyrighted
works to others. See Compl. at ¶¶ 23-26.
Plaintiff discovered defendant’s infringement through reports
from its third-party investigator, IPP International UG (“IPP”).
See Compl. at ¶ 25. IPP, through its employee Tobias Fieser,
initially identified defendant while monitoring the BitTorrent
file

distribution

network

for

the

presence

of

potentially

infringing transactions. Declaration of Tobias Fieser [Doc. No. 47] at ¶¶ 6-8. IPP’s forensic servers connected to an electronic
device registered to defendant’s IP address. Id. at ¶ 8. After the
connection, defendant’s IP address was documented distributing
plaintiff’s
plaintiff

copyrighted
filed

suit

content.
against

Id.

at

¶¶

defendant

8-10.

Thereafter,

alleging

direct

infringement of its copyrighted works. See Compl. at ¶¶ 29-33.
In order to identify the actual defendant, plaintiff seeks
leave to file a Fed. R. Civ. P. 45 subpoena on defendant’s ISP,
Comcast. Pl.’s Br. at 2 [Doc. No. 4-4]. The subpoena would direct
Comcast to divulge the “true name and address” of defendant. Id.

2

Discussion
Generally,

“[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). However, despite the broad scope
of discovery, parties are generally barred from seeking discovery
before the parties participate in a conference in conformance with
Rule 26(f). Fed. R. Civ. P. 26(d)(1). Nonetheless, in certain
circumstances

a

court

“may

grant

[a

party]

leave

to

conduct

discovery prior to” the Rule 26(f) conference. Malibu Media, LLC
v. John Doe subscriber assigned IP address 47.20.202.138, C.A. No.
16-942 (KM/MAH), 2016 WL 952340, at *1 (D.N.J. Mar. 14, 2016)
(citing Better Packages, Inc. v. Zheng, No. 05-4477 (SRC), 2006 WL
1373055, at *2 (D.N.J. May 17, 2006)).
To determine if expedited discovery is appropriate a court
should apply a “good cause” test. Malibu Media, LLC v. Doe, C.A.
No. 15-8940 (MCA/MAH), 2016 WL 614414, at *2 (D.N.J. Feb. 16,
2016); Century Media, Ltd. v. John Does 1-77, C.A. No. 12-3911
(DMC/JAD), 2013 WL 868230, at *2 (D.N.J. Feb. 27, 2013). “Good
cause

exists

where

the

need

for

expedited

discovery,

in

consideration of the administration of justice, outweighs the
prejudice to the responding party.” Malibu Media, 2016 WL 614414,
at

*1

(internal

citations

omitted).

Further,

a

court

should

consider (1) the timing of the request in light of the formal start
to discovery; (2) whether the request is narrowly tailored; (3)
3

the purpose of the requested discovery; (4) whether discovery
burdens the defendant; and (5) whether defendant can respond to
the request in an expedited manner. Better Packages, 2006 WL
1373055, at *3.
Plaintiff contends there is good cause for this Court to grant
its motion because: 1) it makes a prima facie claim for direct
copyright infringement, 2) it has clearly identified the specific
and limited information it seeks through discovery, 3) there are
no alternative means to discover defendant’s true identity, 4) the
subpoenaed information is necessary to advance the infringement
claim, and 5) its interest in knowing defendant’s true identity
outweighs defendant’s privacy interest. Pl.’s Br. at 5-10.
The Court finds plaintiff has demonstrated good cause to serve
a Rule 45 subpoena on Comcast before a Rule 26(f) conference. This
ruling is consistent with other holdings in similar cases. See,
e.g.,

Manny

Film

LLC

v.

Doe

Subscriber

Assigned

IP

Address

50.166.88.98, 98 F. Supp.3d 693, 696 (D.N.J. 2015) (finding good
cause to allow the plaintiff to discover the name and address of
an IP subscriber); Malibu Media, 2016 WL 614414, at *2 (same);
Good Man Prods., Inc. v. Doe, C.A. No. 14-7906 (ES/MAH), 2015 WL
892941, at *3 (D.N.J. Mar. 2, 2015) (same).
However, Courts impose safeguards to protect the privacy
rights of potentially innocent third parties. See Century Media,
Ltd., 2013 WL 868230, at *3-4 (limiting the subpoena to the name
4

and address of the account holder); Manny Film, 98 F. Supp.3d at
696 (limiting the subpoena to the name and address of the account
holder and requiring the ISP to provide notice to the subscriber
in order to provide the subscriber an opportunity to challenge the
subpoena before the ISP releases the information requested). The
Court adopts the reasoning of these cases, and thus, will limit
plaintiff’s discovery request to ensure an innocent party is not
unduly burdened.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED this 2nd day of October, 2018 that
plaintiff’s “Motion Seeking Leave to Serve a Third Party Subpoena
Prior to a Rule 26(f) Conference” [Doc. No. 4] is GRANTED; and it
is further
ORDERED

that

plaintiff

may

serve

a

Rule

45

subpoena

on

Comcast, defendant’s ISP, which assigned the IP address associated
with defendant—174.57.255.114. In the subpoena plaintiff may only
request information regarding the name and address associated with
the IP address. This Order shall be attached to the subpoena; and
it is further
ORDERED that upon receipt of plaintiff’s subpoena the ISP
shall have thirty (30) days to provide the IP subscriber with a
copy of this Order and plaintiff’s subpoena. Upon receipt of the
subpoena and this Order the IP subscriber has thirty (30) days in
which to file a motion to quash, move for a protective order, or
5

seek other applicable relief. If the IP subscriber chooses to
contest the subpoena he/she must notify the ISP of his/her intent
so the ISP is on notice not to release personal information to
plaintiff until the issue is resolved by the Court; and it is
further
ORDERED

that

if

the

IP

subscriber

does

not

contest

the

subpoena within thirty (30) days of receipt of the subpoena and
this Order, the ISP shall provide plaintiff with the requested
information within twenty-one (21) days. Any information plaintiff
receives

from

the

ISP

may

only

be

used

for

the

purpose

protecting its rights as set forth in the complaint.

s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

6

of