UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MALIBU MEDIA, LLC, 

 Plaintiff

v.

JOHN DOE subscribed assigned IP address 

173.73.216.214, 

 Defendant

Civil Action No. 15-886 (CKK)

MEMORANDUM OPINION

(June 17, 2015)

Presently before the Court is Plaintiff’s [3] Motion for Leave to Serve a Third Party 

Subpoena Prior to a Rule 26(f) Conference. Plaintiff, Malibu Media, has filed an action against 

Defendant, John Doe, under the Copyright Act of 1976, alleging that Defendant used BitTorrent 

file sharing to copy and distribute Plaintiff’s copyrighted works. Plaintiff seeks leave of the 

Court to serve a Rule 45 subpoena on John Doe Defendant’s Internet Service Provider, identified 

in Exhibits A and B of the Complaint as Verizon Online, LLC, so that Plaintiff may learn 

Defendant’s true identity. Upon consideration of the pleadings,1 the relevant legal authorities, 

and the record for purposes of this motion, the Court GRANTS Plaintiff’s Motion for Expedited 

Discovery.

I. BACKGROUND

A. Factual Background 

Plaintiff, Malibu Media LLC, operates a subscription based website comprised of its 

copyrighted content. Pl.’s Mot., Ex. A (Colette Field Decl.) ¶¶ 9-13. Using Defendant John Doe’s 

Internet Protocol (“IP”) address (a series of numbers assigned to each Internet service subscriber) 

1

 Compl., ECF No. 1; Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Prior 

to a Rule 26(f) Conference (“Pl.’s Mot.”), ECF No. 3. 

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and IP geolocation technology, Plaintiff’s investigator, IPP International UG (“IPP”), identified 

Defendant John Doe’s IP address as using the BitTorrent file distribution network to access and 

distribute copyrighted movies owned by Plaintiff. Compl. ¶¶ 19-21. IPP’s software traced 

Defendant’s IP address to a physical address located within the District of Columbia. Id. ¶ 6. 

Plaintiff now seeks relief against Defendant, but only knows Defendant by his or her IP address. 

Id. ¶ 10. 

B. Procedural Background 

On June 10, 2015, Plaintiff filed suit in this Court, alleging that Defendant John Doe 

committed tortious copyright infringement in violation of the United States Copyright Act of 

1976, as amended, 17 U.S.C. §§ 101 et seq. The same day, Plaintiff filed a Motion for Leave to 

Serve a Third Party Subpoena Prior to a Rule 26(f) Conference so that it could identify and 

properly serve Defendant John Doe. Pl.’s Mot. Plaintiff alleges that the only way it may identify 

Defendant is to subpoena the Defendant’s Internet Service Provider (ISP), Comcast Cable, 

pursuant to Federal Rule of Civil Procedure 45. Id. 

II. LEGAL STANDARD

A plaintiff who seeks to conduct expedited discovery prior to the Rule 26(f) Conference 

in order to learn the identity of putative defendants is in essence seeking jurisdictional discovery. 

See Exquisite Multimedia, Inc. v. Does 1-336, No. 11-1976, 2012 WL 177885, at *1 (D.D.C. Jan. 

19, 2012). Federal Rule of Civil Procedure 26(d) explains that parties may generally seek 

discovery only after a Rule 26(f) conference, “except ... when authorized by ... court order.” 

Fed. R. Civ. P. 26(d)(1). This Circuit has held that Federal Rule of Civil Procedure 26 “vests the 

trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of 

discovery.” Watts v. SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting Crawford-El v. Britton, 

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523 U.S. 574, 598 (1998)). To determine whether to authorize discovery prior to a Rule 26(f) 

conference in a particular case, this district has applied a “good cause” standard. See Warner 

Bros. Records Inc. v. Does 1-6, 527 F. Supp. 2d 1, 2 (D.D.C. 2007) (“the Court finds that 

plaintiffs have made a showing of good cause for the discovery they seek”). In order to obtain 

jurisdictional discovery a “plaintiff must have at least a good faith belief that such discovery will 

enable it to show that the court has personal jurisdiction over the defendant.” Exquisite 

Multimedia, Inc., 2012 WL 177885, at *1 (quoting Caribbean Broad. Sys. Ltd. v. Cable & 

Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). See also Exponential Biotherapies, Inc. v. 

Houthoff Buruma N.V., 638 F. Supp. 2d 1, 11 (D.D.C. 2009) (holding that while “as a general 

matter, discovery should be freely permitted ... [j]urisdictional discovery is justified only if the 

plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through 

discovery.”) (quoting Kopff v. Battaglia, 425 F. Supp. 2d 76, 89 (D.D.C. 2006)). “Mere 

conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment Group 

LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008). 

Plaintiff’s cause of action, tortious copyright infringement, is brought under a federal 

statute, the Copyright Act. The Copyright Act does not provide for the exercise of personal 

jurisdiction over alleged infringers on any basis. See Exquisite Multimedia, Inc., 2012 WL 

177885, at *2. Therefore, Plaintiff must predicate this Court’s jurisdiction over the infringers on 

the reach of District of Columbia law. Id. District of Columbia law provides for the exercise of 

personal jurisdiction over a person domiciled in the District of Columbia as to “any claim for 

relief.” Id. (quoting D.C. Code § 13–422 (2001)). The so-called “long arm” provision of the 

personal jurisdiction statute provides, in pertinent part, as follows: 

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(a) A District of Columbia court may exercise personal jurisdiction over a person, 

who acts directly or by an agent, as to a claim for relief arising from the 

person’s— 

* * * 

(3) causing tortious injury in the District of Columbia by an act or omission in the 

District of Columbia;

D.C. Code § 13–423 (2001). Personal jurisdiction might properly be exercised over Defendant 

John Doe if he or she is a resident of the District of Columbia or at least downloaded the 

copyrighted work in the District. AF Holdings LLC v. Cox Commc’ns Inc., 752 F.3d 990, 996 

(D.C. Cir. 2014) (citing D.C. Code § 23-423(3), (4)). Thus, unless the infringer is domiciled in 

the District of Columbia, the question presented is where the infringement occurred and whether 

it occurred in the District of Columbia. It is especially important in cases involving allegations of 

copyright infringement using an IP address that the plaintiff demonstrate a good faith basis to 

believe a putative defendant may be a District of Columbia resident or that the injury occurred in 

the District of Columbia. See Nu Image, Inc. v. Doe, 799 F. Supp. 2d 34, 39-40 (D.D.C. 2011). 

In AF Holdings LLC, the Court of Appeals for the District of Columbia Circuit found that 

geolocation services which “enable anyone to estimate the location of Internet users based on 

their IP addresses” are “sufficiently accurate to provide at least some basis for determining 

whether a particular subscriber might live in the District of Columbia.” AF Holdings LLC, 752 

F.3d at 996; see also Nu Image, Inc., 799 F. Supp. 2d at 41 (holding that “the Plaintiff has a good 

faith basis to believe a putative defendant may be a District of Columbia resident if a geolocation 

service places his/her IP address within the District of Columbia, or within a city located within 

30 miles of the District of Columbia.”). 

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III. DISCUSSION

Upon consideration of the relevant legal authorities and Plaintiff’s pleadings, the Court 

finds that good cause exists for Plaintiff’s requested expedited discovery. First, Defendant must 

be identified before this suit can progress further. See Arista Records LLC v. Does 1–19, 551 

F. Supp. 2d 1, 6 (D.D.C. 2008). Second, the Plaintiff has established a good faith basis for 

believing the putative defendant may be a District of Columbia resident. In Plaintiff’s Complaint, 

Plaintiff alleges that it used “proven IP address geolocation technology which has consistently 

worked in similar cases to ensure that the Defendant’s acts of copyright infringement occurred 

using an Internet Protocol address ... traced to a physical address located within this District.” 

See Compl. ¶ 6. Cf. AF Holdings LLC, 752 F.3d at 996 (finding that “AF Holdings’s refusal to 

cabin its suit and corresponding discovery requests to individuals whom it has some realistic 

chance of successfully suing in this district demonstrates that it has not ‘sought the information 

because of its relevance to the issues’ that might actually be litigated here.”) (quoting 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)). Accordingly, under the broad 

discretion granted this Court under the Federal Rule of Civil Procedure 26, this Court grants 

Plaintiff leave to serve a Rule 45 subpoena on the ISP identified in Exhibits A and B of the 

Complaint, Verizon Online, LLC, for the purpose of identifying the putative Defendant’s true 

identity prior to a Rule 26(f) Conference. See Compl., Ex. A (File Hashes for IP Address 

173.73.216.214); id., Ex. B (Copyrights-In-Suit for IP Address 173.73.216.214).

Plaintiff shall be allowed to serve immediate discovery on the identified ISP in order to 

obtain the identity of John Doe Defendant by serving a Rule 45 subpoena that seeks information 

sufficient to identify John Doe Defendant, including the individual’s name, current and 

permanent address, telephone number, e-mail address, and Media Access Control address. Any 

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information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff 

solely for the purpose of protecting Plaintiff’s rights as set forth in the Complaint. If and when 

the ISP is served with a subpoena, the ISP shall give written notice, which may include e-mail 

notice, to the subscriber in question within ten (10) business days prior to releasing the 

subscriber’s identifying information to Plaintiff. If the ISP and/or Defendant want to move to 

quash the subpoena, the party must do so before the return date of the subpoena, which shall be 

no earlier than thirty (30) days from the date of service. The ISP shall preserve any subpoenaed 

information pending the resolution of any timely filed motion to quash. Plaintiff shall provide the 

ISP with a copy of this Memorandum Opinion and the accompanying Order with its subpoenas. 

On or before August 17, 2015, Plaintiff shall file a Status Report with the Court briefly outlining 

its progress, including providing an expected completion date of the discovery allowed by the 

accompanying Order.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has made a showing of “good 

cause” for the expedited discovery it seeks. Accordingly, the Court shall GRANT Plaintiff’s [3] 

Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. 

An appropriate Order accompanies this Memorandum Opinion. 

Dated: June 17, 2015 

 /s/ 

COLLEEN KOLLAR-KOTELLY

United States District Judge

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