United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, District Judge.
Presently before the Court is Plaintiff's  Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Plaintiff, Malibu Media, has filed an action against Defendant, John Doe, under the Copyright Act of 1976, alleging that Defendant used BitTorrent file sharing to copy and distribute Plaintiff's copyrighted works. Plaintiff seeks leave of the Court to serve a Rule 45 subpoena on John Doe Defendant's Internet Service Provider, identified in Exhibits A and B of the Complaint as Verizon Online, LLC, so that Plaintiff may learn Defendant's true identity. Upon consideration of the pleadings,  the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS Plaintiff's Motion for Expedited Discovery.
A. Factual Background
Plaintiff, Malibu Media LLC, operates a subscription based website comprised of its copyrighted content. Pl.'s Mot., Ex. A (Colette Field Decl.) ¶¶ 9-13. Using Defendant John Doe's Internet Protocol ("IP") address (a series of numbers assigned to each Internet service subscriber) and IP geolocation technology, Plaintiff's investigator, IPP International UG ("IPP"), identified Defendant John Doe's IP address as using the BitTorrent file distribution network to access and distribute copyrighted movies owned by Plaintiff. Compl. ¶¶ 19-21. IPP's software traced Defendant's IP address to a physical address located within the District of Columbia. Id. ¶ 6. Plaintiff now seeks relief against Defendant, but only knows Defendant by his or her IP address. Id. ¶ 10.
B. Procedural Background
On June 10, 2015, Plaintiff filed suit in this Court, alleging that Defendant John Doe committed tortious copyright infringement in violation of the United States Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq. The same day, Plaintiff filed a Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference so that it could identify and properly serve Defendant John Doe. Pl.'s Mot. Plaintiff alleges that the only way it may identify Defendant is to subpoena the Defendant's Internet Service Provider (ISP), Comcast Cable, pursuant to Federal Rule of Civil Procedure 45. Id.
II. LEGAL STANDARD
A plaintiff who seeks to conduct expedited discovery prior to the Rule 26(f) Conference in order to learn the identity of putative defendants is in essence seeking jurisdictional discovery. See Exquisite Multimedia, Inc. v. Does 1-336, No. 11-1976, 2012 WL 177885, at *1 (D.D.C. Jan. 19, 2012). Federal Rule of Civil Procedure 26(d) explains that parties may generally seek discovery only after a Rule 26(f) conference, "except... when authorized by... court order." Fed.R.Civ.P. 26(d)(1). This Circuit has held that Federal Rule of Civil Procedure 26 "vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery." Watts v. SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)). To determine whether to authorize discovery prior to a Rule 26(f) conference in a particular case, this district has applied a "good cause" standard. See Warner Bros. Records Inc. v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C. 2007) ("the Court finds that plaintiffs have made a showing of good cause for the discovery they seek"). In order to obtain jurisdictional discovery a "plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant." Exquisite Multimedia, Inc., 2012 WL 177885, at *1 (quoting Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). See also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C. 2009) (holding that while "as a general matter, discovery should be freely permitted... [j]urisdictional discovery is justified only if the plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through discovery.") (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89 (D.D.C. 2006)). "Mere conjecture or speculation" is not enough to justify jurisdictional discovery. FC Investment Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).
Plaintiff's cause of action, tortious copyright infringement, is brought under a federal statute, the Copyright Act. The Copyright Act does not provide for the exercise of personal jurisdiction over alleged infringers on any basis. See Exquisite Multimedia, Inc., 2012 WL 177885, at *2. Therefore, Plaintiff must predicate this Court's jurisdiction over the infringers on the reach of District of Columbia law. Id. District of Columbia law provides for the exercise of personal jurisdiction over a person domiciled in the District of Columbia as to "any claim for relief." Id. (quoting D.C. Code § 13-422 (2001)). The so-called "long arm" provision of the personal jurisdiction statute provides, in pertinent part, as follows:
(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's-
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(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
D.C. Code § 13-423 (2001). Personal jurisdiction might properly be exercised over Defendant John Doe if he or she is a resident of the District of Columbia or at least downloaded the copyrighted work in the District. AF Holdings LLC v. Cox Commc'ns Inc., 752 F.3d 990, 996 (D.C. Cir. 2014) (citing D.C. Code § 23-423(3), (4)). Thus, unless the infringer is domiciled in the District of Columbia, the question presented is where the infringement occurred and whether it occurred in the District of Columbia. It is especially important in cases involving allegations of copyright infringement using an IP address that the plaintiff demonstrate a good faith basis to believe a putative defendant may be a District of Columbia resident or that the injury occurred in the District of Columbia. See Nu Image, Inc. v. Doe, 799 F.Supp.2d 34, 39-40 (D.D.C. 2011). In AF Holdings LLC, the Court of Appeals for the District of Columbia Circuit found that geolocation services which "enable anyone to estimate the location of Internet users based on their IP addresses" are "sufficiently accurate to provide at least some basis for determining whether a particular subscriber might live in the District of Columbia." AF Holdings LLC, 752 F.3d at 996; see also ...