Malibu Media, LLC v. DOE

Filing 4

ORDER granting 2 Motion for Discovery. Signed by Magistrate Judge Terence P Kemp on 7/14/2014. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Malibu Media, LLC,

:

Plaintiff,

:

v.

:

Case No. 2:14-cv-823

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

John Doe,
Defendant.

:
ORDER

This matter is before the Court on the motion for leave to
take discovery prior to the Rule 26(f) conference filed by
plaintiff Malibu Media, LLC.

For the following reasons, the

motion for leave (#2) will be granted.
I.
This is a copyright infringement case involving the file
transfer technology known as BitTorrent.

The use of this

technology, which allows peer-to-peer file sharing, has resulted
in much litigation as of late.

See, e.g., Third Degree Films,

Inc. v. John Does 1-72, 2013 WL 1164024 (E.D. Michigan March 18,
2013)(provides detailed explanation of BitTorrent file-sharing
protocol).

The focus of the litigation has been the alleged use

of this technology to unlawfully reproduce and distribute via the
internet copyrighted motion pictures.

Twenty-seven motion

pictures have been identified as at issue in this case.

See

Exhibits A and B to Complaint (Doc. 1).
In this case, Malibu Media has identified one Doe defendant
by the internet protocol (IP) address assigned by the internet
service provider (ISP) Time Warner Cable.

Malibu Media has

attached to its complaint the ISP for the defendant, the torrent
files copied and distributed, and the location at the time of the

allegedly infringing downloads.

Through its current motion,

Malibu Media seeks to serve a Rule 45 subpoena on Time Warner
Cable to uncover the identity of the account holder of this IP
address, including name, current and permanent addresses,
telephone numbers and email addresses.

Malibu Media states that

any information disclosed in response to the subpoena will be
used only for the purpose of protecting its rights under the
Copyright Act.
II.
Fed.R.Civ.P. 26(d) provides generally that discovery may not
begin prior to the Rule 26(f) conference.

However, Rule 26(d)

also provides that expedited discovery may be conducted prior to
that conference when authorized by court order.

Consequently, a

district court has the discretion to permit discovery prior to a
Rule 26(f) conference.

See, e.g., Qwest Communs. Int'l Inc. v.

Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).
Courts within the Sixth Circuit require a showing of good cause
in order to authorize expedited discovery.

Tesuco Holdings Ltd.

v. Does 1-12, 2012 WL 6607894 (E.D. Tenn. December 18, 2012).
Good cause may be found based upon “(1) allegations of
copyright infringement, (2) the danger that the ISP will not
preserve the information sought, (3) the narrow scope of the
information sought, and (4) the conclusion that expedited
discovery would substantially contribute to moving the case
forward.”

Best v. Mobile Streams, Inc., 2012 WL 5996222, *1

(S.D. Ohio November 30, 2012), citing Arista Records, LLC v. Does
1-9, 2008 WL 2982265 (S.D. Ohio July 29, 2008).

Courts also look

to whether evidence would be lost or destroyed with time and
whether the proposed discovery is narrowly tailored.

Id.; see

also Arista Records, LLC v. Does 1-15, 2007 WL 5254326 (S.D. Ohio
May 17, 2007).
Malibu Media contends that it has demonstrated good cause
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under the standards described above.

On this issue, Malibu Media

asserts that it can show irreparable harm from the infringement
of the copyrighted motion picture.

According to Malibu Media, it

has a valid copyright in the motion picture, defendant had access
to the film, and substantial similarity exists between its
copyrighted work and the alleged infringing work.

Further,

Malibu Media argues that the defendant will not be prejudiced by
the proposed expedited discovery because it is narrowly tailored
and sought for a very limited purpose.

Finally, it contends that

it has no other means for obtaining the identities of the Doe
defendant.
Malibu Media also argues that courts throughout the country
have “unanimously” granted motions for expedited discovery in
actions against BitTorrent defendants.

The Court’s review of the

authority cited by Malibu Media indicates that this is generally
true.

Courts within the Sixth Circuit have found good cause and

granted motions for expedited discovery in such actions as well.
See, e.g., Vision Films, Inc. v. Does 1-16, 2013 WL 1385206 (E.D.
Tenn. April 3, 2013); Malibu Media, LLC v. John Does 1-9, 2013 WL
142083 (E.D. Mich. January 11, 2013)(granting motion in part).
In granting expedited discovery in BitTorrent cases, courts
have found several factors significant.

One such factor is the

specificity with which the defendants have been identified,
including the assigned IP addresses, the date and time of the
alleged illegal download, the hash identifier of the downloaded
file, the ISP, and the location of the IP address.

Also

significant are the steps taken by the plaintiff to locate and
identify the Doe defendants.

Further, courts have looked to

whether the elements of a copyright infringement claim have been
pled.

Courts also have considered whether the proposed discovery

seeks information likely to lead to information which would allow
a plaintiff to effectuate service on the defendants.
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Finally,

courts have considered the likelihood of prejudice to any alleged
infringers.

See, e.g., Vision Films, 2013 WL 1385203, at *2.

As noted above, in the exhibits to its complaint, Malibu
Media provides the IP address assigned to the Doe defendant, the
date and time of the downloads at issue, the hash identifier, the
ISP, and the location of the IP address.

The Court concludes

that, based on this information, Malibu Media has identified the
Doe defendant with sufficient specificity.

Further, based on the

declaration of Tobias Fieser, a forensic investigator, Malibu
Media has described in detail its efforts to identify the Doe
defendant.

Additionally, Malibu Media has pled a copyright

infringement claim.

Finally, Malibu Media has demonstrated that

the information it seeks is likely to lead to information which
will allow it to identify and perfect service on the Doe
defendant.
Given Malibu Media’s stated purpose in seeking this
information, there is no suggestion that the Doe defendant would
be prejudiced by allowing such limited expedited discovery.
Rather, as the Court explained in Malibu Media, LLC v. John Does
1-23, 2012 WL 1144822, *2 (D. Colo. April 4, 2012),
Much like the Arista Records defendants,
Defendants here have engaged in anonymous online
behavior, which will likely remain anonymous unless
Plaintiff is able to ascertain their identities. Thus,
Plaintiff reasonably believes that there are no
practical methods to discover Defendants' identities
without court-ordered discovery. Accordingly, because
it appears likely that Plaintiff will be thwarted in
its attempts to identify Defendants without the benefit
of formal discovery mechanisms, the court finds that
Plaintiff should be permitted to conduct expedited
discovery, pursuant to Fed.R.Civ.P. 45, for the limited
purpose of discovery the identities of Defendants.
Taking all of the above into account, the Court concludes
that Malibu Media has demonstrated good cause for the expedited

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discovery.

Consequently, the motion for leave to take discovery

will be granted.
III.
For the reasons stated above, the motion for leave to take
discovery (#2) is granted.

The plaintiff may serve immediate

discovery on Time Warner Cable to obtain the identity of the Doe
defendant by serving a Rule 45 subpoena seeking documents
including the name, current (and permanent) addresses and
telephone numbers, and e-mail addresses for the defendant.

The

disclosure of this information is ordered pursuant to 47 U.S.C.
§551(c)(2)(B).

Any such information disclosed may be used by

plaintiff solely for the purpose of protecting plaintiff’s rights
under the Copyright Act.
/s/ Terence P. Kemp
United States Magistrate Judge

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