United States District Court, D. New Jersey
LETTER OPINION AND ORDER
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
Letter Opinion and Order will address Plaintiff Malibu Media,
LLC's motion for leave to serve a third-party subpoena to
ascertain the identity of the subscriber assigned Internet
Protocol (“IP”) address 184.108.40.206 for the
dates relevant to the Complaint. Plaintiff seeks to obtain
this information before the Federal Rule of Civil Procedure
26(f) scheduling conference in this matter. Pl.'s Br. in
Supp. of Mot., at 1, Jan. 7, 2019, D.E. 5-4. Pursuant to
Federal Rule of Civil Procedure 78, the Court did not hear
oral argument. For the reasons stated below, Plaintiff's
motion [D.E. 5] is granted.
Malibu Media, LLC (d/b/a “X-Art.com”) is a
California limited-liability corporation that claims
ownership of certain United States copyright registrations.
Compl., at ¶¶ 3, 8, Dec. 18, 2018, D.E. 1.
Plaintiff alleges that Defendant illegally distributed
Plaintiff's copyrighted works via the BitTorrent
peer-to-peer file-sharing system, in violation of the
Copyright Act, 17 U.S.C. § 101 et
seq. Compl., at ¶¶ 1-2, 11-26, D.E.
asserts that it does not know Defendant's identity; it
knows only that the infringing acts alleged in the Complaint
were committed using IP address 220.127.116.11. Pl.'s Br.
in Supp. of Mot., at 1-2, D.E. 5-4. Therefore, Plaintiff
seeks leave to issue a subpoena to the appropriate Internet
Service Provider (“ISP”), in this case Optimum
Online, so that Plaintiff may learn Defendant's true
identity. Id. Plaintiff asserts that the ISP, having
assigned that IP address, can compare the IP address with its
records to ascertain Defendant's identity. Id.
Plaintiff contends that this information is necessary because
without it, Plaintiff will have no means to determine the
true identity of Defendant, and therefore would not be able
to “serve the Defendant nor pursue this lawsuit to
protect its valuable copyrights.” Id. at 2.
LEGAL STANDARD AND ANALYSIS
Rule of Civil Procedure 26(d)(1) provides that “[a]
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f).” The
Court, however, may grant leave to conduct discovery prior to
that conference. See id. In ruling on a motion for
expedited discovery, the Court should consider “the
entirety of the record to date and the reasonableness of the
request in light of all of the surrounding
circumstances.” Better Packages, Inc. v.
Zheng, No. 05-4477, 2006 WL 1373055, at *2 (D.N.J. May
17, 2006) (quoting Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. O'Connor, 194 F.R.D. 618, 624 (N.D.
Ill. 2000)). Courts faced with motions for leave to serve
expedited discovery requests to ascertain the identity of
John Doe defendants in internet copyright infringement cases
often apply the “good cause” test. See In re
BitTorrent Adult Film Copyright Infringement Cases, No.
11-3995, 2012 WL 1570765 (E.D.N.Y. May 1, 2012) (granting
limited early discovery regarding a John Doe defendant);
Pacific Century Int'l. Ltd. v. Does 1-101, No.
11-2533, 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011)
(finding plaintiff had not shown good cause to obtain
expedited discovery). Good cause exists where “the need
for expedited discovery, in consideration of the
administration of justice, outweighs the prejudice to the
responding party.” Am. Legalnet, Inc. v.
Davis, 673 F.Supp.2d 1063, 1066 (C.D. Cal. 2009);
accord Semitool, Inc. v. Tokyo Electron Am., Inc.,
208 F.R.D. 273, 275 (N.D. Cal. 2002).
in this District have frequently applied the “good
cause” standard to permit early but limited discovery
under analogous circumstances. In Malibu Media, LLC v.
John Does 1-11, plaintiff sought leave to serve a
subpoena demanding that the ISP in question reveal the John
Doe defendants' name, address, telephone number, email
address, and Media Access Control (“MAC”)
address. No. 12-7615, 2013 U.S. Dist. LEXIS 26217, at *3-4
(D.N.J. Feb. 26, 2013). In that case, the Court granted the
plaintiff's request for early discovery, but permitted
the plaintiff to obtain only the information absolutely
necessary to allow it to continue prosecuting its claims: the
defendant's name and address. Id. at *3. The
Court recognized that neither party should be left without
remedy. On the one hand, plaintiffs claimed to be the owners
of copyrighted works that were entitled to protection. On the
other hand, more expansive and intrusive discovery could have
imposed an undue burden on innocent individuals who might not
have been the actual infringers. Id. at *9-11
(citing Third Degree Films, Inc. v. John Does 1-110,
Civ. No. 12-5817, 2013 U.S. Dist. LEXIS 27273 (D.N.J. Jan.
17, 2013)). Therefore, the Court granted plaintiffs limited,
early discovery, i.e., the names and addresses of the
subscribers but not the email addresses, phone numbers, or
MAC addresses. Id. at *3. Other courts in this
District have reached the same conclusion and have imposed
similar limitations. See, e.g., Malibu Media LLC
v. Doe, No. 14- 3874 (WJM) (MF), Order (D.E. 7), at 4
(D.N.J. Sept. 2, 2014) (limiting subpoena to be issued before
Rule 26 conference to “the name and address of
Defendant.”); Malibu Media, LLC v. Doe, No.
13-4660 (JAP) (DEA), slip op. (D.E. 5) at 2 (D.N.J. Aug. 19,
2013) (limiting the scope of a pre-Rule 26(f) conference
subpoena to a subscriber's name and address); Voltage
Pictures v. Doe, No. 12-6885 (RMB) (JS), 2013 U.S. Dist.
LEXIS 155356, at *9-10 (D.N.J. May 31, 2013) (granting leave
to serve subpoena requesting only the name, address,
and media access control address associated with a particular
IP address); Malibu Media, LLC v. John Does 1-18,
No. 12-7643 (NLH) (AMD), 2013 U.S. Dist. LEXIS 155911, at
*9-10 (D.N.J. Mar. 22, 2013) (restricting the scope of a
pre-Rule 26(f) conference subpoena by not permitting
discovery of the internet subscriber's telephone number
or e-mail address).
is good cause in this case to permit limited discovery prior
to the Rule 26(f) conference. The information is necessary to
allow Plaintiff to identify the appropriate defendant, and to
effectuate service of the Amended Complaint. The Court
certainly recognizes that the IP account holder might not be
personally responsible for the alleged infringement. However,
the IP account holder might possess information that assists
in identifying the alleged infringer, and thus that
information is discoverable under the broad scope of Rule 26.
See Malibu Media, LLC v. Does, No. 12-07789 (KM)
(MCA), 2013 U.S. Dist. LEXIS 183958, at *24 (D.N.J. Dec. 18,
2013) (“The Court notes that it is possible that the
Internet subscriber did not download the infringing material.
It is also possible, however, that the subscriber either
knows, or has additional information which could lead to the
identification of the alleged infringer. Accordingly, the
Court finds that the information sought by the subpoena is
relevant.”); see also Malibu Media LLC v. Doe,
No. 14-3874 (WJM) (MF), Order (D.E. 7), at 3 (D.N.J. Sept. 2,
2014) (quoting Malibu Media, LLC v. Does, No.
12-07789 (KM) (MCA), 2013 U.S. Dist. LEXIS 183958, at *24
(D.N.J. Dec. 18, 2013)).
the Court determines that good cause exists to allow
Plaintiff to discover the name and address of the IP
subscriber. That information serves the purposes outlined
above, while also taking into consideration the impact that
disclosure might have on a subscriber who is not personally
responsible for the alleged infringement. Therefore, the
Court grants Plaintiff's motion [D.E. 5]. Plaintiff may
serve Optimum Online with a subpoena pursuant to Federal Rule
of Civil Procedure 45 that is limited to obtaining the name
and address of the subscriber of IP address 18.104.22.168.
Plaintiff may not seek the subscriber's telephone
number(s), email address(es), or MAC addresses. Plaintiff
shall attach a copy of this Letter Opinion and Order to the
subpoena. Plaintiff shall limit its use of the information to
this litigation, and Plaintiff shall be prepared to provide
copies of the responsive information to any defendant who
enters an appearance in this case.