MALIBU MEDIA, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 188.8.131.52
LETTER OPINION AND ORDER granting 4 Motion to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Michael A. Hammer on 3/28/17. (cm, )
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
March 28, 2017
To: All counsel of record
LETTER OPINION AND ORDER
Malibu Media, LLC v. John Doe subscriber assigned IP address
Civil Action No. 17-1172 (KM)(MAH)
This Letter Opinion and Order will address Plaintiff Malibu Media, LLC’s motion for
leave to serve a third-party subpoena to ascertain the identity of the subscriber assigned Internet
Protocol (“IP”) address 184.108.40.206 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
this matter. D.E. 4. Pursuant to Federal Rule of Civil Procedure 78, the Court did not hear oral
argument. For the reasons stated below, Plaintiff’s motion [D.E. 4] is granted.
Plaintiff Malibu Media, LLC (d/b/a “X-Art.com”) is a California limited-liability
corporation that claims ownership of certain United States copyright registrations. Compl., at ¶¶
3, 8, Feb. 21, 2017, D.E. 1. Plaintiff alleges that Defendant is a persistent online infringer of
Plaintiff’s copyrights, and Defendant’s IP address was used to illegally distribute each of the
copyrighted movies set forth in Exhibit B attached to Plaintiff’s Complaint, in violation of the
Copyright Act, 17 U.S.C. § 101 et seq. 1 Compl., at ¶¶ 1-3, 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 220.127.116.11. Pl.’s
Br. in Supp. of Mot., at 4-6, March 20, 2017, D.E. 4-4. Therefore, Plaintiff seeks leave to issue a
subpoena to the appropriate Internet Service Provider (“ISP”), in this case, Verizon Internet
Services, so that Plaintiff may learn Defendant’s true identity. Id. at 4-5. Plaintiff asserts that
the ISP, having assigned that IP address, can compare the IP address with its records to ascertain
Defendant’s identity. Id. Plaintiff contends that this information is necessary because without it,
Plaintiff will have no means to determine the true identity of Defendant, and therefore would not
be able to “serve the Defendant nor pursue this lawsuit to protect its valuable copyrights.” Id. at
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. See id. 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) (quoting
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 624 (N.D. Ill. 2000)).
Plaintiff asserts that it retained forensic investigators, IPP International UG and Excipio
GmbH (“Excipio”), to establish a direct TCP/IP connection with the Defendant’s IP address. See
Compl., at ¶ 18, D.E. 1; Declaration of Tobias Fieser (“Fieser Decl.”), at ¶¶ 5-8, March 20, 2017,
D.E. 4-7. Plaintiff alleges that IPP 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 ¶¶ 19-25, D.E. 1; Fieser Decl., at ¶¶ 8-13, D.E. 4-7. Plaintiff further alleges that
“Plaintiff’s evidence establishes that Defendant is a habitual and persistent BitTorrent user and
copyright infringer.” See Compl. at ¶ 26, D.E. 1.
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 party.” 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,
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. 26, 2013).
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. Id. at *3. The Court recognized that neither party
should be left without remedy. On the one hand, 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 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. 143874 (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. 127643 (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)
conference. 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 26. 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. Therefore, the Court grants Plaintiff’s
motion [D.E. 4]. Plaintiff may serve Verizon Internet Services 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 18.104.22.168. 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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