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Malibu Media, LCC v. Doe

United States District Court, E.D. Michigan, Southern Division

May 18, 2017

MALIBU MEDIA, LLC, Plaintiff,
v.
JOHN DOE subscriber assigned IP address 68.32.2.28, Defendant.

          Sean F. Cox District Judge.

          OPINION AND ORDER

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE

         This is a copyright infringement case. Plaintiff Malibu Media, LLC (“Malibu”) owns copyrights to various films, including 13 specific copyrighted works that are the subject of this lawsuit. See Complaint [Doc. #1], Exhibit B. Before the Court is Malibu's motion for leave to serve a third party subpoena on Internet Service Provider Comcast Cable (“Comcast”) prior to a Rule 26(f) conference [Doc. #2].[1] For the reasons discussed below, the motion is GRANTED.

         Malibu does not know the name of the John Doe Defendant, but states that it has identified the Defendant by a unique Internet Protocol (“IP”) address that was involved in the alleged infringement (i.e., downloading a movie without paying) while participating in a “BitTorrent swarm.”[2]

         Plaintiff has proffered the declaration of Tobias Feiser of IPP, Limited (“IPP”), a company that provides forensic investigation services to copyright owners. Mr. Feiser states that as part of his duties, he monitors the BitTorrent file distribution network for the presence of copyrighted works, and “identif[ies] the Internet Protocol (“IP”) addresses that are being used by infringers to distribute these copyrighted works.” Feiser Declaration, ¶6 [Doc. #4]. Mr. Feiser states that as part of his investigation, he found that a person using Defendant's IP address engaged in BitTorrent transactions with regard to the copyrighted works alleged in the complaint. Id. ¶¶ 8-13.

         F. R. Civ. P. 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” (emphasis added). Malibu is correct that a district court has the discretion to permit the early issuance of a Rule 45 subpoena prior to a Rule 26(f) conference. This issue arises not infrequently in copyright infringement cases where the identity of the alleged infringer is not known. See Arista Records, LLC v. Doe 3, 604 F.3d 110 (2nd Cir. 2012). The standard for granting a motion for this type of subpoena is good cause. Id. The factors that a court considers are (1) a prima facie showing of copyright infringement, (2) a specific discovery request, (3) an absence of alternative means to obtained the subpoenaed information, (4) plaintiff's central need for the subpoenaed information, and (5) the defendant's minimal expectation of privacy. Id.

         Having reviewed the complaint, Plaintiff's motion, and the accompanying exhibits, I am satisfied that under these standards, there is good cause to issue the Rule 45 subpoena prior to the Rule 26(a) conference, in that there is no other reasonable alternative to discovering the Defendant's true identity.[3]

         Accordingly, Plaintiff's motion for leave to serve third party subpoena [Doc. #2] is GRANTED, as follows:

         1. Malibu may serve a Rule 45 subpoena on Internet Service Provider Comcast Cable, in order to identify the actual name and contact information for John Doe, who is associated with IP address 68.32.2.28. The subpoena will be limited to following information about John Doe: name, address, telephone number, and email address. A copy of this Opinion and Order shall be attached to any such subpoena.

         2. Comcast shall in turn serve a copy of the subpoena and a copy of this order on the subscriber, defendant John Doe, within 30 days from the date of service of the subpoena on Comcast. Comcast may serve the subscriber using any reasonable means, including written notice sent to the subscriber's last known address, transmitted either by first-class mail or via overnight service.

         3. Nothing in this order precludes Comcast or Defendant John 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 earlier than 30 days from the date of service of the subpoena on Comcast.

         4. If Comcast or the subscriber files a motion to quash or a motion for a protective order, Comcast shall preserve the information sought by the subpoena pending resolution of such a motion.

         5. Any information disclosed to plaintiff by Comcast may only be used by Plaintiff for the purpose of protecting its rights under the ...


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