United States District Court, D. New Jersey, Camden Vicinage
SCHNEIDER United States Magistrate Judge
matter is before the Court on the “Motion Seeking Leave
to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference” (“Motion”) [Doc. No. 4] filed
by plaintiff, Malibu Media, LLC. Plaintiff's motion
alleges the John Doe defendant assigned to IP address
126.96.36.199 infringed its copyrighted works.
Plaintiff's only identifying information for defendant is
the IP address. Accordingly, plaintiff seeks limited
discovery in advance of the Fed.R.Civ.P. 26(f) conference so
that plaintiff may obtain defendant's name and address
from his or her internet service provider
(“ISP”), Comcast Cable Holdings, LLC
(“Comcast”). The Court exercises its discretion
to decide plaintiff's motion without oral argument.
See Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the
reasons to be discussed, plaintiff's motion is GRANTED.
holds the copyright to a multitude of adult films and
content. See Decl. of Collette Pelissier, Ex. A
[Doc. No. 4-5]. Plaintiff alleges defendant used a file
distribution network known as BitTorrent to copy and
distribute plaintiff's copyrighted works to others.
See Compl. at ¶¶ 23-26.
discovered defendant's infringement through reports from
its third-party investigator, IPP International UG
(“IPP”). See Compl. at ¶ 25. IPP,
through its employee Tobias Fieser, initially identified
defendant while monitoring the BitTorrent file distribution
network for the presence of potentially infringing
transactions. Declaration of Tobias Fieser [Doc. No. 4-7] at
¶¶ 6-8. IPP's forensic servers connected to an
electronic device registered to defendant's IP address.
Id. at ¶ 8. After the connection,
defendant's IP address was documented distributing
plaintiff's copyrighted content. Id. at
¶¶ 8-10. Thereafter, plaintiff filed suit against
defendant alleging direct infringement of its copyrighted
works. See Compl. at ¶¶ 29-33.
order to identify the actual defendant, plaintiff seeks leave
to file a Fed.R.Civ.P. 45 subpoena on defendant's ISP,
Comcast. Pl.'s Br. at 2 [Doc. No. 4-4]. The subpoena
would direct Comcast to divulge the “true name and
address” of defendant. Id.
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense.” Fed.R.Civ.P. 26(b). However, despite
the broad scope of discovery, parties are generally barred
from seeking discovery before the parties participate in a
conference in conformance with Rule 26(f). Fed.R.Civ.P.
26(d)(1). Nonetheless, in certain circumstances a court
“may grant [a party] leave to conduct discovery prior
to” the Rule 26(f) conference. Malibu Media, LLC v.
John Doe subscriber assigned IP address 188.8.131.52,
C.A. No. 16-942 (KM/MAH), 2016 WL 952340, at *1 (D.N.J. Mar.
14, 2016) (citing Better Packages, Inc. v. Zheng,
No. 05-4477 (SRC), 2006 WL 1373055, at *2 (D.N.J. May 17,
determine if expedited discovery is appropriate a court
should apply a “good cause” test. Malibu
Media, LLC v. Doe, C.A. No. 15-8940 (MCA/MAH), 2016 WL
614414, at *2 (D.N.J. Feb. 16, 2016); Century Media, Ltd.
v. John Does 1-77, C.A. No. 12-3911 (DMC/JAD), 2013 WL
868230, at *2 (D.N.J. Feb. 27, 2013). “Good cause
exists where the need for expedited discovery, in
consideration of the administration of justice, outweighs the
prejudice to the responding party.” Malibu
Media, 2016 WL 614414, at *1 (internal citations
omitted). Further, a court should consider (1) the timing of
the request in light of the formal start to discovery; (2)
whether the request is narrowly tailored; (3) the purpose of
the requested discovery; (4) whether discovery burdens the
defendant; and (5) whether defendant can respond to the
request in an expedited manner. Better Packages,
2006 WL 1373055, at *3.
contends there is good cause for this Court to grant its
motion because: 1) it makes a prima facie claim for direct
copyright infringement, 2) it has clearly identified the
specific and limited information it seeks through discovery,
3) there are no alternative means to discover defendant's
true identity, 4) the subpoenaed information is necessary to
advance the infringement claim, and 5) its interest in
knowing defendant's true identity outweighs
defendant's privacy interest. Pl.'s Br. at 5-10.
Court finds plaintiff has demonstrated good cause to serve a
Rule 45 subpoena on Comcast before a Rule 26(f) conference.
This ruling is consistent with other holdings in similar
cases. See, e.g., Manny Film LLC v. Doe
Subscriber Assigned IP Address 184.108.40.206, 98
F.Supp.3d 693, 696 (D.N.J. 2015) (finding good cause to allow
the plaintiff to discover the name and address of an IP
subscriber); Malibu Media, 2016 WL 614414, at *2
(same); Good Man Prods., Inc. v. Doe, C.A. No.
14-7906 (ES/MAH), 2015 WL 892941, at *3 (D.N.J. Mar. 2, 2015)
Courts impose safeguards to protect the privacy rights of
potentially innocent third parties. See Century Media,
Ltd., 2013 WL 868230, at *3-4 (limiting the subpoena to
the name and address of the account holder); Manny
Film, 98 F.Supp.3d at 696 (limiting the subpoena to the
name and address of the account holder and requiring the ISP
to provide notice to the subscriber in order to provide the
subscriber an opportunity to challenge the subpoena before
the ISP releases the information requested). The Court adopts
the reasoning of these cases, and thus, will limit
plaintiff's discovery request to ensure an innocent party
is not unduly burdened.
for the foregoing reasons, IT IS HEREBY ORDERED this 2nd day
of October, 2018 that plaintiff's “Motion Seeking
Leave to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference” [Doc. No. 4] is GRANTED; and it is further
that plaintiff's “First Motion for an Extension of
Time Within Which to Effectuate Service of Process”
[Doc. No. 5] and plaintiff's “Second Motion for an
Extension of Time Within Which to Effectuate Service of
Process” [Doc. No. 6] are ...