Malibu Media, LLC v. John Doe subscriber assigned to IP address 73.52.94.247

Filing 9

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 9/30/15. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MALIBU MEDIA, LLC,

:
CIVIL ACTION NO. 3:15-1703

Plaintiff

:
(JUDGE MANNION)

v.

:

JOHN DOE subscriber assigned
IP address 73.52.94.247,

:
:

Defendant
:

MEMORANDUM
I.

Introduction
Presently before the court is an ex parte Motion for Leave to Serve

Third Party Subpoena Prior to a Rule 26(f) Conference (Doc. 6) filed by the
Plaintiff, Malibu Media, LLC. After considering the Plaintiff’s Memorandum of
Law in Support of the Motion (Doc. 7), this court will GRANT the motion,
subject to the conditions set forth below.

II.

Background
On September 1, 2015, Plaintiff filed a complaint alleging copyright

infringement of various films it created and distributed online against

Defendant, an unnamed Internet subscriber assigned with the IP address
73.52.94.247. Plaintiff asserts the following facts in its complaint (Doc. 1),
motion for expedited discovery (Doc. 6), and memorandum of law in support
thereof (Doc. 7). The court accepts the allegations as true for purposes of
this motion, without making any findings of fact. Plaintiff alleges that
Defendant downloaded, copied, and distributed Plaintiff’s films by using the
online BitTorrent file distribution network, “one of the most common peer-topeer file sharing systems used for distributing large amounts of data” (Doc.
1 at ¶ 11). The technology at issue in this case has been explained in detail
by numerous other courts and need not be repeated herein. See, e.g., Malibu
Media LLC v. Doe, No. 1:15-cv-01129, 2015 WL 3795948, at *1 (M.D. Pa.
June 18, 2015); Modern Woman, LLC v. Does I-X, No. 2:12-cv-04858, 2013
WL 888603, at *1 (D.N.J. Feb. 27, 2013). Possessing only an IP address,
Plaintiff contends that it needs discovery from third party internet service
provider, Comcast Cable (“Comcast” or the “ISP”), in order to identify
Defendant so that it may serve the complaint upon Defendant, prevent
Defendant from continuing to infringe Plaintiff’s copyrighted works, and seek
redress for the illegal downloading and distribution of its films (Doc. 7).

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III.

Legal Standard
Pursuant to Rule 26(d)(1), “a party may not seek discovery from any

source before the parties have conferred as required by Rule 26(f),” except
in certain circumstances not applicable here, or “by court order.” Absent
binding precedent setting forth the standard for when a court may order
discovery prior to the Rule 26(f) conference, this court has looked to other
district courts for guidance. When confronted by similar motions for expedited
discovery to help identify the defendant(s) in copyright infringement cases,
courts have employed a “good cause” standard. See, e.g., Malibu Media,
LLC v. John Does 1-18, No. 1:12-cv-07643, 2013 U.S. Dist. LEXIS 155911,
at *3 (D.N.J. Mar. 22, 2013); Modern Woman, 2013 WL 888603, at *2. Under
FRCP 26(b)(1), “[f]or good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action.”

IV.

Discussion
Plaintiff asserts that during the course of investigation, it obtained the

IP address of Defendant, and that Comcast has information in its possession
that will enable it to identify Defendant using the IP address. Specifically,
Plaintiff seeks to serve a subpoena on Comcast pursuant to Rule 45 to solicit

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Defendant’s name and address. Plaintiff argues there is no other way to
obtain that information (Doc. 7 at 10).
This court finds that Plaintiff has adequately established that good
cause exists for serving a third party subpoena prior to the Rule 26(f)
conference. Plaintiff seeks the name and address associated with the IP
address 73.52.94.247, which was purportedly used to illegally distribute
copyrighted works. The information that Plaintiff seeks is relevant to its
claims, as the information is “reasonably calculated to lead to the discovery
of admissible evidence [at trial]” under Rule 26(b)(1) and may assist Plaintiff
in identifying Defendant. The Plaintiff’s only means of identifying Defendant
is through discovery from Comcast, and hence it is the sole means to serve
Defendant with the complaint and pursue its claims. In addition, the court
notes that pursuant to 47 U.S.C. §551(c)(2)(B), a cable provider may disclose
such personally identifiable information if such disclosure is "made pursuant
to a court order authorizing such disclosure, if the subscriber is notified of
such order by the person to whom the order is directed."
Given the ex parte nature of the application, the court finds it prudent
to impose conditions on Plaintiff’s requested relief, “in an effort to fashion a
remedy that will ensure that the rights of all parties are adequately protected.”

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Modern Woman, 2013 WL 707908, at *5. Several district courts have
fashioned similar limitations in cases such as this, where plaintiff moves for
expedited discovery to identify a John Doe defendant. See Malibu Media LLC
v. Doe, 2015 WL 3795948, at *3; Malibu Media, 2013 U.S. Dist. LEXIS
155911, at *11; Modern Woman, 2013 WL 888603, at *5; Next Phase
Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165, 172 (S.D.N.Y. 2012).
Accordingly, the court will grant Plaintiff's motion, subject to the
conditions outlined below:
1. Plaintiff may serve a Rule 45 subpoena upon the ISP for the purpose
of obtaining information necessary to identify the individual assigned with the
IP address 73.52.94.247 (the “John Doe Defendant”), specifically his or her
name and address. The subpoena shall have a copy of the order attached;
2. The ISP will have fourteen (14) days from the date of service of the
Rule 45 subpoena to serve the John Doe Defendant with a copy of the
subpoena and a copy of the order. The ISP may serve the John Doe
Defendant 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;
3. The John Doe Defendant shall have fourteen (14) days from the date
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of service of the Rule 45 subpoena to file any motions with this court
contesting the subpoena (including a motion to quash or modify the
subpoena). The ISP may not turn over the John Doe Defendant’s identifying
information to Plaintiff before the expiration of this 28 day period. Additionally,
if the John Doe Defendant or ISP files a motion to quash the subpoena, the
ISP shall not produce any information to Plaintiff until the court issues an
order instructing the ISP to resume production of the requested discovery.
If the John Doe Defendant moves to quash or modify the subpoena, the John
Doe Defendant shall contemporaneously notify the ISP so that the ISP is on
notice not to release the John Doe Defendant’s contact information to
Plaintiff until the court rules on any such motion;
4. If the 28 day period lapses without the John Doe Defendant or ISP
contesting the subpoena, the ISP shall have fourteen (14) days to produce
the information responsive to the subpoena to Plaintiff;
5. The ISP shall preserve any subpoenaed information pending the
resolution of any timely-filed motion to quash;
6. Any information ultimately disclosed to Plaintiff in response to a Rule
45 subpoena may be used by Plaintiff solely for the purpose of litigating the
instant case.

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V.

Conclusion
It is for the foregoing reasons that the court GRANTS the motion (Doc.

6), subject to the conditions above. An appropriate order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Date: September 30, 2015
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