Malibu Media, LLC v. John Doe
ORDER granting Malibu's motion 8 for leave to serve Rule 45 subpoena, in acc w/ specific instructions set forth in Paragraphs 1-6 of order. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 5/14/18. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MALIBU MEDIA, LLC,
JOHN DOE subscriber assigned IP
CIVIL ACTION NO. 1:18-CV-964
(Chief Judge Conner)
AND NOW, this 14th day of May, 2018, upon consideration of the motion
(Doc. 8) for leave to serve third-party subpoena prior to Rule 26(f) conference
filed by plaintiff Malibu Media, LLC (“Malibu”), wherein Malibu sets forth that it
commenced this litigation asserting claims of copyright infringement against a John
Doe defendant, known only by an Internet Protocol (“IP”) Address at this time, and
that the John Doe defendant’s true identity is known only to his or her Internet
Service Provider (“ISP”), and wherein Malibu seeks leave of court to serve limited,
immediate discovery upon John Doe’s ISP to ascertain his or her true identity, (see
id.), and the court noting that, pursuant to Federal Rule of Civil Procedure 26(d)(1),
“a party may not seek discovery from any source before the parties have conferred
as required by Rule 26(f),” FED. R. CIV. P. 26(d)(1), but that early discovery may
be authorized by court order, see id., and that courts within this judicial district
employ a “good cause” standard in determining whether to authorize expedited
discovery for purposes of identifying a defendant in internet copyright infringement
cases, see, e.g., Malibu Media, LLC v. Doe, No. 3:15-CV-1703, 2015 WL 5829792, at *1
(M.D. Pa. Sept. 30, 2015) (Mannion, J.) (collecting cases); Malibu Media, LLC
v. Doe, No. 1:15-CV-1132, 2015 WL 3795957, at *1 (M.D. Pa. June 18, 2015) (Rambo,
J.) (same), and the court concluding that Malibu has adequately demonstrated
good cause for serving a third party subpoena prior to the Rule 26(f) conference
sub judice, but concluding further that, given the ex parte nature of Malibu’s
application, the interests of justice dictate that the court impose certain conditions
on the relief requested by Malibu, with the aim of avoiding any unintended
consequences of disclosure of John Doe’s information and curtailing unfettered
early discovery in internet copyright infringement actions, see Malibu Media, 2015
WL 5829792, at *2; Malibu Media, 2015 WL 3795957, at *3, it is hereby ORDERED
Malibu may serve a Rule 45 subpoena upon the ISP identified in its
motion (Doc. 8) for the purpose of obtaining information necessary to
identify the individual associated with the IP Address 18.104.22.168
(“John Doe”), specifically his or her name and address. The subpoena
shall have a copy of this order attached.
The ISP shall have thirty (30) days from the date of service of the
Rule 45 subpoena to serve John Doe with a copy of the subpoena and a
copy of this order. The ISP may serve John Doe using any reasonable
means, including written notice sent to his or her last known address,
transmitted either by first-class mail or via overnight service.
John Doe shall have thirty (30) days from the date of service of the
Rule 45 subpoena to file any motions with this court contesting the
subpoena (including a motion to quash or to modify the subpoena).
The ISP may not turn over John Doe’s identifying or contact
information to Malibu before the expiration of this thirty (30) day
period. Additionally, if John Doe files a motion to quash or to modify
the subpoena, the ISP shall not produce any information to Malibu
until this court issues an order instructing the ISP to produce the
requested discovery. If John Doe moves to quash or to modify the
subpoena, John Doe shall contemporaneously notify the ISP so that
the ISP is on notice not to release John Doe’s identity or contact
information to Malibu until the court rules on any such motion.
If the thirty (30) day period lapses without John Doe or the ISP
contesting the subpoena, the ISP shall have ten (10) days to produce
the information responsive to the subpoena to Malibu.
The ISP shall preserve any subpoenaed information pending the
resolution of any timely-filed motion to quash.
Any information ultimately disclosed to Malibu in response to a Rule
45 subpoena may be used by Malibu solely for the purpose of litigating
the instant case.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
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