United States District Court, E.D. Michigan
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
SERVE THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Malibu Media filed this copyright infringement action against
Defendant, who is identified only by the Internet Protocol
(“IP”) address 126.96.36.199. 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).
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.
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, Comcast Cable
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
it shall comply with 47 U.S.C. § 551(c)(2)(B), which
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 of such order ...