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Malibu Media, LLC v. Doe

United States District Court, E.D. Michigan

June 12, 2018

MALIBU MEDIA, LLC, Plaintiff,
v.
JOHN DOE subscriber assigned IP Address 67.149.58.201, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE (Doc. 2)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Plaintiff Malibu Media filed this copyright infringement action against Defendant, who is identified only by the Internet Protocol (“IP”) address 67.149.58.201. Plaintiff alleges that Defendant downloaded Plaintiff's copyrighted material without permission through BitTorrent, a file sharing site. Now before the court is Plaintiff's Motion for Leave to Serve A Third Party Subpoena Prior to a Rule 26(f) Conference (the “Motion”) (Doc. 2).

         “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 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” Fed.R.Civ.P. 26(d)(1). A number of courts, including those in the Sixth Circuit, have applied a “good cause” standard to determine whether such discovery should be authorized. See, e.g., Malibu Media, LLC v. Doe, No. 18-CV-10667, 2018 WL 1122012, at *1 (E.D. Mich. Mar. 1, 2018); Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 6 (D.D.C. 2008) (collecting cases). In copyright infringement cases like the present one, courts routinely find good cause to permit discovery in advance of a Rule 26(f) conference to identify the defendants where: (1) the plaintiff makes a prima facie showing of a copyright infringement claim; (2) the plaintiff submits a specific discovery request; (3) the information sought is limited in scope and not available through alternative means; (4) there is a central need for the subpoenaed information; and (5) there is a minimal expectation of privacy on the part of the defendant. See Arista Records, LLC v. Doe, 604 F.3d 110, 119 (2d Cir. 2010) (citing Sony Music Entm't, Inc. v. Does 1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)).

         Plaintiff has alleged a case of copyright infringement against an unidentified defendant. In order to proceed, Defendant must be identified. Accordingly, the court finds that good cause exists for Plaintiff to serve a third-party subpoena on Defendant's Internet Service Provider, WideOpenWest (“ISP”).

         Plaintiff's Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference is GRANTED to the following extent:

         1. Plaintiff established that “good cause” exists for it to serve a third party subpoena on the ISP. See Malibu Media, 2018 WL 1122012, at *1; Arista Record, 551 F.Supp.2d at 6-7.

         2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to provide Plaintiff with the true name and address of the Defendant to whom the ISP assigned an IP address as set forth on Exhibit A to the Complaint. Plaintiff shall attach to any such subpoena a copy of this Order.

         3. Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any service provider that is identified in response to a subpoena as a provider of Internet services to one of the Defendants.

         4. If the ISP qualifies as a “cable operator, ” as defined by 47 U.S.C. § 522(5), which states:

         the term “cable operator” means any person or group of persons

(A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or
(B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

it shall comply with 47 U.S.C. § 551(c)(2)(B), which states:

         A cable operator may disclose such [personal identifying] information if the disclosure is . . . made pursuant to a court order authorizing such disclosure, if the subscriber is notified ...


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