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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

COBBLER NEVADA, L.L.C., 

 

 Plaintiff, 

 Case No. 2:15-CV-11871 

v. District Judge Sean F. Cox 

 Magistrate Judge Anthony P. Patti 

DOES 1-15, 

 

 Defendants. 

___________________________________/ 

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR 

LEAVE TO SERVE THIRD-PARTY SUBPOENAS PRIOR TO A RULE 

26(f) CONFERENCE (DE 2) 

 This matter is before the Court for consideration of Plaintiff Cobbler 

Nevada, L.L.C.’s Motion for Leave to Serve Third-Party Subpoenas Prior to a Rule 

26(f) Conference. (DE 2.) Plaintiff filed suit on May 25, 2015, against fifteen (15) 

“Doe” defendants, identified only by the subscriber Internet Protocol (“IP”) 

address he or she is alleged to have used to unlawfully download and share 

Plaintiff’s copyrighted movie (“The Cobbler”) using BitTorrent software. (DE 1 at 

3 ¶ 10, DE 1-2.) On June 16, 2015, Plaintiff filed the instant motion and 

memorandum in support, in which it seeks to discover the identities of the Does by 

issuing a subpoena on the Internet Service Provider (“ISP”) associated with the 

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identified IP addresses. (DEs 2, 3.) For the reasons discussed below, this Motion 

is GRANTED. 

I. BACKGROUND 

 This is a copyright infringement case. Plaintiff Cobbler Nevada, L.L.C. 

owns the copyright to The Cobbler, the copyrighted work at issue in this lawsuit. 

(DE 1-1.) Plaintiff does not know the names of the Doe Defendants but indicates 

that it has identified Defendants through unique IP addresses that were involved in 

the alleged infringement. In support of its Motion, Plaintiff provides the affidavit 

of Daniel Macek, who has been retained as a consultant by Maverickeye UG 

(“MEU”), a company that provides forensic investigation services to copyright 

owners. (DE 3-2 at 1 ¶ 2.) Mr. Macek avers that he found persons using 

Defendants’ IP addresses engaged in transactions with regard to the copyrighted 

work alleged in the Complaint. (DE 3-2 at 4-5 ¶¶ 19, 25.) 

II. ANALYSIS 

 Federal Rule of Civil Procedure 26(d)(1) provides: 

A party may not seek discovery from any source before the parties 

have conferred as required by Rule 26(f), except in a proceeding 

exempted from initial disclosure under Rule (1)(B), or when 

authorized by these rules, by stipulation, or by court order. 

Fed. R. Civ. P. 26(d)(1) (emphasis added). Although the United States Court of 

Appeals for the Sixth Circuit has not addressed the standard to be applied in such 

instances, courts in this district have applied a “good cause” standard to determine 

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whether such expedited discovery should be authorized. See Malibu Media, LLC 

v. Doe, No. 14-14237, 2015 WL 224807, at *1 (E.D. Mich. Jan 15, 2015). This 

issue arises not infrequently in copyright infringement cases where the identity of 

the infringer is not known. See Arista Records, LLC v. Doe 3, 605 F.3d 110 (2nd 

Cir. 2012). 

Courts have further developed the “good cause” standard. Specifically, in 

copyright cases, the court considers the following factors to determine whether the 

issuance of subpoenas to discover the identity of Doe defendants in advance of a 

Rule 26(f) conference is proper: (1) whether the plaintiff has made a prima facie 

showing of a copyright infringement claim; (2) whether the plaintiff has submitted 

a specific discovery request; (3) whether the information sought is limited in scope 

and not available through alternative means; (4) whether plaintiff has a central 

need for the subpoenaed information; and (5) whether there is minimal expectation 

of privacy on the part of the defendant. Arista Records, 604 F.3d at 119; Patrick 

Collins v. Does 1-21, Case No. 11-15232, DE 5 (E.D. Mich. Dec. 16, 2011). 

 Having reviewed the pleadings and the instant Motion, the Court finds that 

Plaintiff has demonstrated good cause for early discovery. It has stated a plausible 

claim for copyright infringement and specifically identified the discovery sought – 

“the true name and address of the Defendant to whom the ISP assigned an IP 

address . . . .” as set forth in Exhibit B. (DE 2-1 at 1 ¶ 2, DE 3 at 11). The Court 

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also finds that defendants do not have a reasonable expectation of privacy in their 

internet subscriber information. See Hard Drive Prods. v. Doe, No. 11-9062, 2012 

U.S. Dist. Lexis 82927, at *10-11 (N.D. Ill. June 14, 2012). Furthermore, the 

information sought is: (a) necessary to prosecute Plaintiff’s claim; (b) otherwise 

unavailable; and (c) narrowly tailored. 

III. CONCLUSION 

Accordingly, Plaintiff’s Motion (DE 3) is GRANTED subject to the 

following modifications: 

1. Plaintiff shall attach a copy of this Order to the subpoena it 

issues to each Doe’s ISP. 

2. Plaintiff’s subpoena to the ISP may seek only the following 

information regarding John/Jane Doe: 

a. Full name, and 

b. Residential address.1

3. Within seven days of its receipt of the subpoena, the ISP shall 

reasonably attempt to identify the subject John/Jane Doe 

subscriber and provide him or her with a copy of the subpoena 

and this Order. 

4. Nothing in this Order precludes the ISP or John/Jane Doe from 

challenging the subpoena consistent with the Federal Rules of 

Civil Procedure and this Court’s local rules. However, any 

such challenge, such as a motion to quash the subpoena or a 

motion for a protective order, shall be filed before the return 

date of the subject subpoena, and the return date shall be no 

                                                            

1 See, e.g., Malibu Media LLC v. John Doe, No. 13-10511, DE 7 (E.D. Mich. Feb. 

26, 2013) (concluding that Plaintiff was not permitted to seek or obtain John Doe’s 

email address or telephone number). 

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earlier than thirty-five days from the service of the subpoena on 

the ISP. See Third Degree Films v. Does 1-47, No. 12-10761, 

2012 WL 4498911, at *1 (D. Mass. Oct. 2, 2012) (issuing a 

subpoena with provision for motion practice before production 

of information). Where no motion is filed by either the ISP or 

John/Jane Doe within the time periods prescribed herein, the 

ISP shall produce to Plaintiff the information identified in 

Paragraph 2(a) and (b) above. 

 

5. Plaintiff and any entity that receives a subpoena shall confer, if 

necessary, with respect to the issue of payment for the 

information requested in the subpoena or for resolution of the 

IP address if it is not controlled by such entity, duplicate IP 

addresses that resolve to the same individual, or for the entity’s 

internal costs to notify its customers. 

6. Any entity that receives a subpoena and elects to charge for the 

costs of production, shall provide a billing summary and any 

cost reports that serve as a basis for the billing summary, along 

with any other costs claimed. 

7. Plaintiff may only use the information disclosed in response to 

a Rule 45 subpoena served on an ISP for the purposes of 

protecting and enforcing Plaintiff’s rights as set forth in its 

Complaint. 

IT IS SO ORDERED. 

Dated: July 14, 2015 s/Anthony P. Patti 

 ANTHONY P. PATTI 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on July 14, 2015, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

Honorable Anthony P. Patti 

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