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

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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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