MALIBU MEDIA, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 108.5.52.134

Filing 5

LETTER OPINION AND ORDER granting 4 Motion For Leave 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

Chambers of

Martin Luther King Federal Building
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07101
[phone]

Michael A. Hammer
United States Magistrate Judge

March 28, 2017
To: All counsel of record
LETTER OPINION AND ORDER
RE:

Malibu Media, LLC v. John Doe subscriber assigned IP address
108.5.52.134
Civil Action No. 17-1182 (ES)(MAH)

Dear Counsel:
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 108.5.52.134 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.
I.

BACKGROUND

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 that 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 108.5.52.134. Pl.’s Br. in Supp.
of Mot., at 4-6, March 21, 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 4-6. 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 4.
II.

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)). Courts
faced with motions for leave to serve expedited discovery requests to ascertain the identity of John

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Plaintiff asserts that it retained forensic investigators, IPP International UG (“IPP”) 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 21, 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.
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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. 143

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. 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
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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 108.5.52.134.

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
So Ordered.

s/ Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE

2

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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