Malibu Media, LLC v. DOE

Filing 8

ORDER entered GRANTING 6 Ex Parte MOTION for Discovery.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOE, subscriber assigned
IP address 99.90.89.28,
Defendant.

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March 07, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-607

ORDER GRANTING LEAVE TO SERVE THIRD-PARTY
SUBPOENA PRIOR TO RULE 26(f) CONFERENCE
In this copyright infringement case, Malibu Media, LLC has filed an ex parte motion for
leave to serve a third-party subpoena prior to a Rule 26(f) conference.1 (Docket Entry No. 6).
Malibu Media seeks leave to serve a third party subpoena on AT&T Internet Services, the defendant
John Doe’s internet service provider, to obtain identifying information of the defendant John Doe.
Id. at 7. Based on the motion and the evidence, the court finds the motion has merit and grants the
request to serve the subpoena.
A showing of good cause is required for a plaintiff to obtain an order identifying the accounts
associated with Internet Protocol (IP) addresses. This requires “(1) a concrete showing of a prima
facie claim of actionable harm by the plaintiff; (2) specificity of the discovery request; (3) the
absence of alternative means to obtain the subpoenaed information; (4) a central need for the
subpoenaed information to advance the claim; and (5) [consideration of] the user’s expectation of

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Rule 26(d)(1) states that “[a] party may not seek discovery from any source before the parties
have conferred as required by Rule 26(f)” unless the court orders otherwise.

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privacy.” Well Go USA, Inc., v. Unknown Participants, 2012 WL 4387420 at *1 (S.D. Tex. 2012)
(citing Arista Records, LLC v. Doe 3, 604 F.3d 110, 114 (2d Cir. 2010)).
Malibu Media’s complaint alleges that its investigator established a direct TCP/IP connection
with the defendant’s IP address through which one or more digital media files containing Malibu
Media’s copyrighted works were downloaded, infringing Malibu Media’s copyright. (Docket Entry
No. 1 at 4); (Docket Entry No. 1-1). Malibu Media has only been able to identify the defendant by
his or her IP address. (Docket Entry No. 1 at 2). To proceed in this action, Malibu Media seeks
issuance of a subpoena to AT&T Internet Services to provide information sufficient to identify the
defendant by name and address. (Docket Entry No. 6 at 16). Malibu Media has established that
good cause exists for it to serve a Rule 45 subpoena on AT&T Internet Services. See Davis v.
Duncan Energy Partners L.P., 801 F.Supp.2d 589, 596 (S.D. Tex. 2011).
Malibu Media’s ex parte motion, (Docket Entry No. 6), is granted to the extent that:
(1)

In accordance with Federal Rule of Civil Procedure 45, Malibu Media may serve the
requested subpoena on AT&T Internet Services for the following information
concerning the defendant identified by the IP address 99.90.89.28: name and current
address. No telephone numbers are to be produced.

(2)

In addition to serving the subpoena, Malibu Media must serve AT&T Internet
Services with a copy of its motion, exhibits, and this order.

(3)

AT&T Internet Services must comply with the subpoena by serving the defendant
with copies of the subpoena and this order within 30 days after receiving the
subpoena from Malibu Media. AT&T Internet Services may use reasonable means
of service, including written notice sent to the last known address using either first-

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class mail or overnight service.
(4)

If another internet service provider is identified in response to the subpoena as the
internet service provider for the defendant John Doe, Malibu Media must move for
leave to serve that internet service provider with a Rule 45 subpoena and show good
cause.

(5)

Within 30 days after receiving a copy of the subpoena and this order, the defendant
may file any motion with this court to quash the subpoena or to proceed
anonymously.

AT&T Internet Services may not turn over the defendant’s

identifying information to Malibu Media until this 30-day period expires. If the
defendant files a motion to quash or modify the subpoena, AT&T Internet Services
may not turn over any identifying information to Malibu Media until this court rules
on the defendant’s motion.

If the defendant moves to quash or proceed

anonymously, he or she must immediately notify AT&T Internet Services so that
AT&T Internet Services is on notice not to release the defendant’s information until
the court rules on such motions.
(6)

If the 30-day period lapses without the defendant contesting the subpoena, AT&T
Internet Services will have 14 days to produce the subpoenaed information to Malibu
Media.

(7)

Malibu Media must serve the defendant with copies of all materials and information
obtained about him or her.

(8)

Any information disclosed to Malibu Media in response to the subpoena may be used
by Malibu Media solely for the purpose of protecting its rights as set forth in its

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complaint.
(9)

Upon receipt of the subpoena, AT&T Internet Services must preserve all subpoenaed
information pending the resolution of any timely filed motion to quash.

(10)

Malibu Media must reimburse AT&T Internet Services for reasonable costs incurred
in producing the requested information if AT&T Internet Services provides Malibu
Media with a detailed invoice setting out the work performed.
SIGNED on March 7, 2018, at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

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