MANNY FILM LLC. v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 220.127.116.11
LETTER-OPINION/ORDER granting 4 Motion for Leave to Serve Subpoena Prior to Rule 26(f) Conference by MANNY FILM LLC. Signed by Magistrate Judge Michael A. Hammer on 7/22/15. (DD, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Martin Luther King Federal Building
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07101
Michael A. Hammer
United States Magistrate Judge
July 22, 2015
To: All counsel of record
LETTER OPINION AND ORDER
Manny Film LLC v. John Doe subscriber assigned IP address
Civil Action No. 15-1504 (KM)(MAH)
This Letter Opinion and Order will address Plaintiff Manny Film, LLC’s motion for leave
to serve a third-party subpoena to ascertain the identity of the subscriber assigned Internet
Protocol (“IP”) address 18.104.22.168 for the dates relevant to the Complaint.
Plaintiff seeks to
obtain this information before the Federal Rule of Civil Procedure 26(f) scheduling conference in
Pl.’s Br. in Supp. of Mot., at 4-5, Mar. 12, 2015, D.E. 4-1.
Rule of Civil Procedure 78, the Court did not hear oral argument.
Pursuant to Federal
For the reasons stated below,
Plaintiff’s motion [D.E. 4] is granted.
Plaintiff Manny Film, LLC. is the registered owner of the copyrighted audiovisual work
Compl., at ¶¶ 3, 11, 27, Feb. 27, 2015, D.E. 1; Exh. B to Compl., Feb. 27, 2015,
Plaintiff alleges that Defendant illegally distributed Plaintiff’s copyrighted works via
the BitTorrent peer-to-peer file-sharing protocol, in violation of the Copyright Act, 17 U.S.C. §
101 et seq. 1
Compl., at ¶¶ 1-2, 39, Feb. 27, 2015, D.E. 1.
Plaintiff asserts that it does not know Defendant’s identity; it knows only that the
infringing acts alleged in the Complaint were committed using IP address 22.214.171.124.
Pl.’s Br. in Supp. of Mot., at 4, Mar. 12, 2015, D.E. 4-1.
Therefore, Plaintiff seeks leave to
issue a subpoena to the appropriate Internet Service Provider (“ISP”), in this case Optimum
Online, for the “true name and address” of the account holder of that IP address. See id. at 4-5.
Plaintiff asserts the ISP, having assigned that IP address, can compare the IP address with its
records to ascertain Defendant’s identity.
See id. at 4-5; Declaration of Patrick Paige (“Paige
Decl.”), at ¶¶ 10-11, Mar. 12, 2015, D.E. 4-2. Plaintiff contends this information is necessary
because without it, Plaintiff will have no means to determine the true identity of the Defendant,
and therefore would not be able to “serve the Defendant nor pursue this lawsuit to protect its
valuable copyrights.” Pl.’s Br. in Supp. of Mot., at 5, Mar. 12, 2015, D.E. 4-2.
LEGAL STANDARD AND ANALYSIS
Federal Rule of Civil Procedure 26(d)(1) provides that “[a] party may not seek discovery
from any source before the parties have conferred as required by Rule 26(f).” The Court,
however, may grant leave to conduct discovery prior to that conference.
In ruling on a
motion for expedited discovery, the Court should consider “the entirety of the record to date and
the reasonableness of the request in light of all of the surrounding circumstances.” Better
Packages, Inc. v. Zheng, No. 05-4477, 2006 WL 1373055, at *2 (D.N.J. May 17, 2006)
Plaintiff asserts that it retained an infringement detection company, Excipio GmbH
(“Excipio”), to identify the IP address that distributed Plaintiff’s copyrighted material and
document the alleged acts of infringement. See Compl., at ¶ 25, Feb. 27, 2015, D.E. 1;
Declaration of Daniel Susac (“Susac Decl.”), at ¶¶ 7-8, Mar. 12, 2015, D.E. 4-3. Plaintiff
alleges that Excipio was able to use the BitTorrent protocol to download one or more bits of
Plaintiff’s copyrighted material during connections with Defendant’s IP address. See Compl.,
at ¶¶ 25-30, Feb. 27, 2015, D.E. 1; Susac Decl., at ¶ 11, Mar. 12, 2015, D.E. 4-3. BitTorrent
assembled the pieces that Defendant downloaded into a viewable movie file, from which Excipio
was also able to download a full copy of Plaintiff’s film. See Compl., at ¶¶ 29-30, Feb. 27,
2015, D.E. 1; see also Susac Decl., at ¶ 11, Mar. 12, 2015, D.E. 4-3.
(quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 624 (N.D.
Courts faced with motions for leave to serve expedited discovery requests to
ascertain the identity of John Doe defendants in internet copyright infringement cases often
apply the “good cause” test. See In re BitTorrent Adult Film Copyright Infringement Cases,
No. 11-3995, 2012 WL 1570765 (E.D.N.Y. May 1, 2012) (granting limited early discovery
regarding a John Doe defendant); Pacific Century Int’l. Ltd. v. Does 1-101, No. 11-2533, 2011
WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011) (finding plaintiff had not shown good cause to
obtain expedited discovery).
Good cause exists where “the need for expedited discovery, in
consideration of the administration of justice, outweighs the prejudice to the responding
Am. Legalnet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D. Cal.
2009); accord Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275 (N.D. Cal. 2002).
Courts in this District have frequently applied the “good cause” standard to permit early
but limited discovery under analogous circumstances.
In Malibu Media, LLC v. John Does
1-11, the plaintiff sought leave to serve a subpoena demanding that the ISP in question reveal the
John Doe defendants’ name, address, telephone number, email address, and Media Access
Control (“MAC”) address. No. 12-7615, 2013 U.S. Dist. LEXIS 26217, at *3-4 (D.N.J. Feb.
In that case, the Court granted the plaintiff’s request for early discovery, but
permitted the plaintiff to obtain only the information absolutely necessary to allow it to continue
prosecuting its claims:
the defendant’s name and address.
that neither party should be left without remedy.
Id. at *3.
The Court recognized
On the one hand, the plaintiffs claimed to be
the owners of copyrighted works that were entitled to protection.
On the other hand, more
expansive and intrusive discovery could have imposed an undue burden on innocent individuals
who might not have been the actual infringers.
Id. at *9-11 (citing Third Degree Films, Inc. v.
John Does 1-110, Civ. No. 12-5817, 2013 U.S. Dist. LEXIS 27273 (D.N.J. Jan. 17, 2013)).
Therefore, the Court granted the plaintiffs limited, early discovery, i.e., the names and addresses
of the subscribers but not the email addresses, phone numbers, or MAC addresses.
Id. at *3.
Other courts in this District have reached the same conclusion and have imposed similar
limitations. See, e.g., Malibu Media LLC v. Doe, No. 14-3874 (WJM) (MF), Order (D.E. 7), at
4 (D.N.J. Sept. 2, 2014) (limiting subpoena to be issued before Rule 26 conference to “the name
and address of Defendant.”); Malibu Media, LLC v. Doe, No. 13-4660 (JAP) (DEA), slip op.
(D.E. 5) at 2 (D.N.J. Aug. 19, 2013) (limiting the scope of a pre-Rule 26(f) conference subpoena
to a subscriber’s name and address); Voltage Pictures v. Doe, No. 12-6885 (RMB) (JS), 2013
U.S. Dist. LEXIS 155356, at *9-10 (D.N.J. May 31, 2013) (granting leave to serve subpoena
requesting only the name, address, and media access control address associated with a particular
IP address); Malibu Media, LLC v. John Does 1-18, No. 12-7643 (NLH) (AMD), 2013 U.S.
Dist. LEXIS 155911, at *9-10 (D.N.J. Mar. 22, 2013) (restricting the scope of a pre-Rule 26(f)
conference subpoena by not permitting discovery of the internet subscriber’s telephone number
or e-mail address).
There is good cause in this case to permit limited discovery prior to the Rule 26(f)
The information is necessary to allow Plaintiff to identify the appropriate
defendant, and to effectuate service of the Amended Complaint.
The Court certainly recognizes
that the IP account holder might not be personally responsible for the alleged infringement.
However, the IP account holder might possess information that assists in identifying the alleged
infringer, and thus that information is discoverable under the broad scope of Rule
See Malibu Media, LLC v. Does, No. 12-07789 (KM)(MCA), 2013 U.S. Dist. LEXIS
183958, at *24 (D.N.J. Dec. 18, 2013) (“The Court notes that it is possible that the Internet
subscriber did not download the infringing material.
It is also possible, however, that the
subscriber either knows, or has additional information which could lead to the identification of
the alleged infringer. Accordingly, the Court finds that the information sought by the subpoena
is relevant.”); see also Malibu Media LLC v. Doe, No. 14-3874 (WJM) (MF), Order (D.E. 7), at
3 (D.N.J. Sept. 2, 2014) (quoting Malibu Media, LLC v. Does, No. 12-07789 (KM) (MCA),
2013 U.S. Dist. LEXIS 183958, at *24 (D.N.J. Dec. 18, 2013)).
Accordingly, the Court determines that good cause exists to allow Plaintiff to discover
the name and address of the IP subscriber.
That information serves the purposes outlined
above, while also taking into consideration the impact that disclosure might have on a subscriber
who is not personally responsible for the alleged infringement.
Plaintiff’s motion [D.E. 4].
Therefore, the Court grants
Plaintiff may serve Optimum Online with a subpoena pursuant to
Federal Rule of Civil Procedure 45 that is limited to obtaining the name and address of the
subscriber of IP address 126.96.36.199.
Plaintiff may not seek the subscriber’s telephone
number(s), email address(es), or MAC addresses.
Plaintiff shall attach a copy of this Letter
Opinion and Order to the subpoena. Plaintiff shall limit its use of the information to this
litigation, and Plaintiff shall be prepared to provide copies of the responsive information to any
defendant who enters an appearance in this case. 2
s/ Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE
Before filing an Amended Complaint naming a specific individual as a defendant,
Plaintiff shall ensure that it has an adequate factual basis to do so. By permitting this discovery,
the Court does not find or suggest that Plaintiff may rely solely on the subscriber’s affiliation
with the IP address in question as the basis for its claims or its identification of the specific
individual as the defendant.
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