Malibu Media, LLC v. Doe

Filing 20

MEMORANDUM AND ORDER ORDER granting 9 Motion Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. The plaintiff's motion for leave to serve a third-party subpoena, prior to a Fed. R. Civ. P. 26(f) conference, is granted. IT IS FURTHER ORDERED that Malibu may immediately serve a Fed. R. Civ. P. 45 subpoena on the ISP, Time Warner Cable, of the John Doe subscriber identified by the IP address 66.65.42.47, to obtain information from which to identify the defendant, spec ifically his or her name, current and permanent address. Malibu is not permitted to subpoena the ISP for the defendant's emailaddresses or telephone number(s). The plaintiff shall attach a copy of this order to the subpoena; and as further set forth herein. The Clerk of Court is directed to close the motion at Docket Entry No. 9. SO ORDERED. (Signed by Magistrate Judge Kevin Nathaniel Fox on 9/20/2018) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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MALIBU MEDIA LLC,
Plaintiff,
-against-

MEMORANDUM AND ORDER

JOHN DOE subscriber assigned IP
address 66.65.42.47,

18-CV-3228 (ALC)(KNF)

Defendant.

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KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
Pursuant to Federal Rule of Civil Procedure 26(d)( 1), Malibu Media, LLC ("Malibu ")
moves for leave to serve a third-party subpoena on defendant John Doe's Internet Service
Provider ("ISP"), Time Warner Cable, to ascertain John Doe's identity. 1
Courts apply "a flexible standard of reasonableness and good cause" when considering
whether to grant a motion for expedited discovery prior to a Federal Rule of Civil Procedure
26(f) conference. Malibu Media, LLC v. John Doe Subscriber Assigned IP Address 173.68.5.86,
No. 16-CV-2462, 2016 WL 2894919, at *2 (S.D.N.Y. May 16, 2016) (internal quotation marks
and citation omitted). Here, the Court finds that the plaintiff has met the reasonableness and
good cause standard for early discovery, even under the heightened scrutiny required of an ex
parte submission. Malibu seeks only the name and address of the subscriber associated with the

defendant's IP address, which is a limited and highly specific set of facts. Additionally, since
1

See Malibu Media, LLC v. John Doe subscriber assigned IP address 66.65.42.47, No. 18
CV 3228 (ALC) (KNF), Docket Entry No. 8 (order granting the plaintiffs request for permission
to file the instant motion).

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there are no alternative means by which the plaintiff can learn the identity of the defendant, the
information the plaintiff seeks through a subpoena is necessary: without this discovery, Malibu
will be unable to pursue the instant copyright infringement action. See Arista Records, LLC v.
Doe 3, 604 F.3d 110, 119 (2d Cir. 2010). Therefore, the plaintiffs motion for leave to serve a
third-party subpoena, prior to a Fed. R. Civ. P. 26(f) conference, is granted.
IT IS FURTHER ORDERED that
(1) Malibu may immediately serve a Fed. R. Civ. P. 45 subpoena on the ISP, Time
Warner Cable, of the John Doe subscriber identified by the IP address 66.65.42.47, to obtain
information from which to identify the defendant, specifically his or her name, current and
permanent address. Malibu is not permitted to subpoena the ISP for the defendant's email
addresses or telephone number(s). The plaintiff shall attach a copy of this order to the subpoena.
(2) The ISP will have 45 days from the date of service of the subpoena and this Order to
file any motion(s) with this court challenging the subpoena (including a motion to quash or
modify the subpoena) as well as any request to litigate the subpoena anonymously. The ISP may
not tum over the identifying information of John Doe to Malibu before the expiration of this 45day period. Additionally, if the defendant or the ISP files a motion to quash or modify the
subpoena, the ISP may not tum over any information to Malibu until that motion(s) has been
resolved and the Court issues an order instructing the ISP to do so;
(3) the subpoenaed entity shall preserve any subpoenaed information pending the
resolution of any motion to quash that is filed timely;
(4) an ISP that receives a subpoena pursuant to this Order shall confer with Malibu and
shall not assess any charge in advance of providing information requested in the subpoena; if the

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ISP elects to charge for the production cost, it shall provide a billing summary and cost report to
Malibu; and
(5) any information disclosed to Malibu in response to the subpoena may be used only for
the purpose of protecting Malibu's rights as set forth in its complaint.
The Clerk of Court is directed to close the motion at Docket Entry No. 9.
SO ORDERED:

Dated: New York, New York
September 20, 2018

,~~wKEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE

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