United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f)
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
copyright infringement action, Plaintiff Malibu Media LLC
("Plaintiff" or "Malibu Media") asserts
that defendant John Doe, identified only by his or her
Internet Protocol ("IP") address, has unlawfully
distributed four of Plaintiff's copyrighted adult films
by using BitTorrent, a "peer-to-peer file sharing
system[ ] used for distributing large amounts of data,
including, but not limited to, digital movie
files." Doc. 1, at ¶ 11. Pursuant to Rule
26(d)(1) of the Federal Rules of Civil Procedure, Plaintiff
has moved for leave to serve a third-party subpoena on
Defendant's internet service provider ("ISP"),
Comcast Cable, for the limited purpose of discovering
Defendant's identity so that Plaintiff may serve
Defendant with process and proceed in litigating this case.
Doc. 7. For the reasons Plaintiff has presented in its motion
and supporting papers, and the discussion detailed below, the
Court will grant the motion for good cause, as limited by the
conditions delineated herein.
general, parties "may not initiate discovery prior to
satisfying the meet and confer requirement of Fed.R.Civ.P.
26(f)." Digital Sin, Inc. v. Does 1-176, 279
F.R.D. 239, 241 (S.D.N.Y. 2012). Specifically, under Rule
26(d)(1) of the Federal Rules of Civil Procedure, "[a]
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f),"
except in limited proceedings delineated in Rule 26(a)(1)(B),
or "when authorized by these rules, by stipulation, or
by court order." "[C]ourts may in some instances
order earlier discovery." Digital Sin, 279
F.R.D. at 241 (citing Fed.R.Civ.P. 26(d)). See,
e.g., Malibu Media, LLC v. John Doe Subscriber
Assigned IP Address 188.8.131.52, No. 1:16-CV-02462(AJN),
2016 WL 2894919, at *2 (S.D.N.Y. May 16, 2016) ("[A]
party may engage in discovery before such a [26(f)]
conference pursuant to a court order." (citing
considering whether to grant a motion for expedited discovery
prior to a Rule 26(f) conference, courts apply a
"flexible standard of reasonableness and good
cause." Malibu Media, 2016 WL 2894919, at *2
(collecting cases). See also Arista Records LLC v. Does
1-4, 589 F.Supp.2d 151, 152-53 (D. Conn. 2008) (applying
"good cause" standard to request for expedited
discovery). See generally 8A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 2046.1 (3d ed. 2018) ("Although [Rule 26(d)] does
not say so, it is implicit that some showing of good cause
should be made to justify such an order, and courts presented
with requests for immediate discovery have frequently treated
the question whether to authorize early discovery as governed
by a good cause standard.").
Second Circuit, in evaluating subpoenas seeking identifying
information from ISPs regarding subscribers who are parties
to copyright infringement litigation, courts have examined
the following factors:
(1) the concreteness of the plaintiff's showing of a
prima facie claim of actionable harm, (2) the specificity of
the discovery request, (3) the absence of alternative means
to obtain the subpoenaed information, (4) the need for the
subpoenaed information to advance the claim, and (5) the
objecting party's expectation of privacy.
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d
Cir. 2010) (quoting Sony Music Entm't, Inc. v. Does
1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)). If
"[a]pplication of these 'principal factors'
confirms that the Plaintiff is entitled" to the
requested subpoena, the motion for early discovery will be
granted for good cause. Malibu Media, 2016 WL
2894919, at *2 (quotation marks and citation omitted).
the principal factors in detail, the plaintiff must first
state a prima facie claim for copyright infringement.
See, e.g., Sony Music, 326 F.Supp.2d at 565.
Specifically, the plaintiff must show: "(1) ownership of
a valid copyright, and (2) copying of constituent elements of
the work that are original." Feist Publ'ns, Inc.
v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).
See also Urbont v. Sony Music Entm't, 831 F.3d
80, 88 (2d Cir. 2016) (same).
owner of a copyright has exclusive rights to reproduce that
copyrighted work and to distribute copies to the public by
sale, transfer of ownership, rent, lease, or lending. 17
U.S.C. § 106. Moreover, a plaintiff is entitled to seek
statutory damages and attorney's fees under the United
States Copyright Act if its copyrighted work was registered
within three months of the first date of publication. 17
U.S.C. §§ 411(c)(2), 501.
plaintiff makes "a concrete, prima facie case of
copyright infringement by alleging ownership of the
registered copyright and alleging unlawful downloading,
copying, and distribution of this work by specifying the type
of technology used, the IP address from which the file was
accessed and shared, and the date and time of the
infringement." Malibu Media, LLC v. Doe, No.
14-CV-4808 (JS)(SIL), 2016 WL 4574677, at *6 (E.D.N.Y. Sept.
1, 2016) (quotation marks and citation omitted). See also
Sony Music, 326 F.Supp.2d at 565-66 ("[T]he use of
P2P [peer-to-peer] systems to download and distribute
copyrighted music has been held to constitute copyright
infringement." (collecting cases)); Patrick Collins,
Inc. v. John Doe 1, 945 F.Supp.2d 367, 375 (E.D.N.Y.
2013) ("Indeed, every court to have addressed this issue
has found a sufficiently alleged copyright infringement claim
based on BitTorrent technology, even when the defendant was
merely identified with an IP address.").
Media has alleged that it is the owner of the adult films at
issue. See Doc. 1, ¶ 23; Doc. 1-2 (list of
"Copyrights-In-Suit for IP Address 184.108.40.206").
In addition, Malibu Media has made a plausible showing that
wrongful "copying" of that work has occurred by
alleging that its investigator, IPP International UG
("IPP"), has established a direct IP connection
with the Defendant's IP address, as set forth in
Plaintiff' Exhibit A to its Complaint. Doc. 1, ¶ 18.
In particular, Plaintiff has alleged that its investigator,
IPP, has established that Defendant's IP address was used
to unlawfully download four of Plaintiff's copyrighted
movies from the BitTorrent file distribution network.
Id., ¶¶ 18-21; see also Doc. 1-1
and 1-2 (Ex. A & B, respectively). Under these circumstances,
Plaintiff has stated a prima facie case for actionable harm
due to copyright infringement.
in order to show "good cause" for early discovery,
the plaintiff must narrowly tailor and specify the
information sought by the discovery request. The information
requested in the subpoena must be limited, seeking
"concrete and narrow information: the name and address
of the subscriber associated with Doe [Defendant's] IP
address . . . ." John Wiley & Sons, Inc. v. Doe Nos.
1-30, 284 F.R.D. 185, 190 (S.D.N.Y. 2012). Courts have
labeled the subscriber's identity and address as
"highly specific," Malibu Media, 2016 WL 4574677,
at *6, recognizing that "Plaintiffs clearly need
identification of the putative John Does in order to serve
process on them and prosecute their claims," UN4
Prods., Inc. v. Doe-220.127.116.11, No.
17-CV-3278(PKC)(SMG), 2017 WL 2589328, at *3 (E.D.N.Y. June
14, 2017) (citation and quotation marks omitted). See also
Sony Music, 326 F.Supp.2d at 566 ("Ascertaining the
identities and residences of the Doe defendants is critical
to plaintiffs' ability to pursue litigation, for without
this information, plaintiffs will be unable to serve
process."); Malibu Media, 2013 WL 3732839, at *5 n.1
("Discovery requests must be 'sufficiently
specific' to establish a reasonable likelihood that the
discovery request would lead to identifying information that
would make possible service upon particular defendants who
could be sued in federal court.'" (quoting Sony
Music, 326 F.Supp.2d at 566)).
case at bar, Plaintiff requests to serve a subpoena to obtain
"the true name and address of the Defendant to whom the
ISP assigned an IP address as set forth on Exhibit A in the
Complaint." Doc.7-1, ¶ 2. Because the requested
subpoena is sufficiently specific, the second principal
factor weighs in favor of the Court granting Plaintiff's
motion for leave to serve the subpoena.
there must be no "alternative means to obtain the
subpoenaed information." Arista Records, 604
F.3d at 119 (quoting Sony Music, 326 F.Supp.2d at
564-65). In the case at bar, Plaintiff "only knows
Defendant by his . . . IP address." Doc. 7-2, at 1.
Plaintiff asserts that "[t]he government, law
enforcement officials, criminal and civil judges, and ISPs
alike all acknowledge that subpoenaing an ISP is the only way
to identify an internet subscriber." Id. at 15.
That is because "[t]here are no publicly-available
databases or 'yellow pages' that can identify an
individual by an IP address." Id. Moreover, ISP
records "are the only available evidence that
allows [one] to investigate who committed crimes on the
Internet." Id. (emphasis in original)
(quotation marks and citation omitted). Therefore,
"issuing a subpoena to the responsible ISP is the only
way to identify the subscriber of an IP address."