United States District Court, D. Connecticut
ORDER ON MOTION FOR LEAVE TO SERVE THIRD PARTY
A. Bolden United States District Judge
Media, LLC (“Malibu Media” or
“Plaintiff”) alleges that John Doe, identified
only by his IP address, committed copyright infringement by
distributing Plaintiff's copyrighted adult films using
BitTorrent, a peer-to-peer file distribution network.
Complaint, ECF No. 1.
Media moves under Federal Rule of Civil Procedure 26(d)(1)
for leave to serve a third-party subpoena on Defendant's
Internet Service Provider (“ISP”) for the limited
purpose of discovering Defendant's identity, as only with
Defendant's identity will Plaintiff be able to serve
Defendant with process and proceed with this case. Motion for
Leave to Serve a Third Party Subpoena, ECF No. 8.
Plaintiff has established good cause for entry of this order
with respect to service of a third-party subpoena, the Court
GRANTS the motion, subject to the
limitations discussed below.
Media acknowledges the concerns raised by many district
courts around the nation, Memorandum of Law in Support of
Motion for Leave to Serve Third-Party Subpoena Prior to Rule
26(f) Conference, ECF No. 8-1, that given the nature of the
films allegedly distributed by defendants in the many
essentially identical actions that Malibu Media has filed
nationwide, see, e.g. Malibu Media LLC v. John Does
1-12, 2012 WL 5928528 (C.D. Ill. 2012), Malibu
Media, LLC v. Doe, No. 1:15-cv-01834, 2015 WL 4403407
(S.D.N.Y. July 20, 2015) Malibu Media, LLC v. Doe,
No. 12-civ-2950, 2012 WL 5987854 (S.D.N.Y. Nov. 30, 2012),
Malibu Media, LLC v. Doe, No. 14-3945, 2015 WL
3795716 (D. N.J. June 18, 2015), Malibu Media, LLC v.
Doe, No. 14-cv-00223, 2014 WL 4682793 (D. Md. Sept. 18,
2014), Malibu Media, LLC v. Doe, No. 14-cv-0932,
2015 WL 2451926 (E.D. Wisc. May, 21, 2015), Malibu Media,
LLC v. Doe, No. No. PWG-13-365, 2014 WL 7188822 (D. Md.
Dec. 16, 2014), Malibu Media, LLC v. Does, No.
1:12-cv-263, 2012 WL 6019259 (N.D. Ind. Dec. 3, 2012),
Malibu Media, LLC v. Does, No. 12 Civ. 3810, 2013 WL
3732839 (S.D.N.Y. July 16, 2013), Malibu Media, LLC v.
Does, No. 12-2095, 2012 WL 8264665 (E.D. Pa. Sept. 27,
2012), Malibu Media, LLC v. Dreev, No. 6:13-cv-1959
(M.D. Fla. Jan. 5, 2015), Malibu Media, LLC v.
Harris, No. 1:12-cv-1117, 2013 WL 3780571 (S.D. Ind.
July 18, 2013), Malibu Media, LLC v. John Does 1, 6, 13,
14 and Bryan White, 2013 WL 3038025 (E.D. Pa. June 18,
2013), Malibu Media, LLC v. John Does 1, 6, 13, 14,
950 F.Supp.2d 779, 782 (E.D. Pa. 2013), Malibu Media, LLC
v. John Does 1-2, 4-8, 10-16, 18-21, 2013 WL 1777710 (D.
Colo. Feb. 12, 2013), Malibu Media, LLC v. John Does
1-30, 2:12-cv-13312-DPH-MJH (E.D. Mich. May 16, 2013),
Malibu Media, LLC v. John Does 1-5, 285 F.R.D. 273,
278 (S.D.N.Y. 2012), Malibu Media, LLC v. John Does
1-6, 2013 WL 2150679 (N.D. Ill. May 17, 2013),
Malibu Media, LLC v. John Does 1-9,
8:12-cv-00669-SDM-AEP (M.D. Fla. July 6, 2012), defendants
may feel coerced to settle these suits merely to prevent
public disclosure of their identifying information as part of
court records, see Malibu Media, LLC v. Doe, No. C
15-04441 WHA, 2016 WL 3383758, at *3 (N.D. Cal. June 20,
2016) (“The damages exposure in this case, as with
Malibu Media's many other cases, is significant, so a
defendant may feel pressure to settle even a meritless case.
Coupled with the taboo nature of the subject matter, there
remains potential for abuse.”). The Court shares these
concerns. This Order therefore is subject to the following
conditions and limitations:
1. Plaintiff may subpoena Defendant's ISP only to obtain
Defendant's name and address, but not Defendant's
e-mail or telephone number. Plaintiff may only use
Defendant's name and address, if obtained by
Defendant's ISP, for the purposes of this litigation;
Plaintiff is ordered not to disclose Defendant's name or
address, or any other identifying information other than
Defendant's ISP number, that Plaintiff may subsequently
learn. Plaintiff shall not threaten to disclose any of
Defendant's identifying information. Defendant will be
permitted to litigate this case anonymously unless and until
this Court orders otherwise and only after Defendant has had
an opportunity to challenge the disclosure. Therefore,
Plaintiff is ordered not to publicly file any of
Defendant's identifying information and to file all
documents containing Defendant's identifying information
2. Plaintiff may immediately serve a Rule 45 subpoena on
Defendant's ISP to obtain Defendant's name and
current and permanent address. Plaintiff is expressly not
permitted to subpoena the ISP for Defendant's e-mail
addresses or telephone numbers. Plaintiff shall serve
Defendant's ISP with a copy of the Complaint, this Order,
and the subpoena.
3. After having been served with the subpoena, the ISP will
delay producing to Plaintiff the subpoenaed information until
after it has provided Defendant John Doe with:
a. Notice that this suit has been filed naming Defendant as
the one that allegedly downloaded copyright protected work;
b. A copy of the subpoena, the Complaint filed in this
lawsuit, and this Order; and
c. Notice that the ISP will comply with the subpoena and
produce to Plaintiff the information sought in the subpoena
unless within sixty (60) days of service of the subpoena on
Defendant by the ISP, Defendant files a motion to quash the
subpoena or for other appropriate relief in this Court. If a
timely motion to quash is filed, the ISP shall not produce
the subpoenaed information until the Court acts on the
4. Defendant's ISP will have sixty (60) days from the
date of service of the Rule 45 subpoena upon it to serve
Defendant John Doe with a copy of the Complaint, this Order,
and the subpoena. The ISP may serve Defendant John Doe using
any reasonable means, including written notice sent to his or
her last known address, transmitted either by first class
mail or via overnight service.
5. Defendant John Doe shall have sixty (60) days from the
date of service of the Rule 45 subpoena and this Order upon
him to file any motions with this Court contesting the
subpoena (including a motion to quash or modify the
subpoena), as well as any request to litigate the subpoena
anonymously. The ISP may not turn over the identifying
information of Defendant to Plaintiff before the expiration
of this sixty-day period. Additionally, if Defendant or the
ISP files a motion to quash or modify the subpoena, or a
request to litigate the subpoena anonymously, the ISP may not
turn over any information to Plaintiff until the issues have
been addressed and the Court issues an order instructing the
ISP to resume turning over the requested discovery.
6. Defendant's ISP shall preserve any subpoenaed
information pending the resolution of any timely ...