United States District Court, District of Columbia
MICAEL HARVEY, United States Magistrate Judge
the Court is Plaintiff s motion for leave to serve a third
party subpoena prior to a Rule 26(f) conference. For the
reasons stated herein, the motion is granted.
Media, LLC ("Plaintiff) produced and owns the copyrights
to certain motion pictures involved in this action. [Dkt. 1,
at ¶ 3]. Plaintiff has filed suit under the Copyright
Act of 1976 against Defendant John Doe, alleging that
Defendant "downloaded, copied, and distributed"
Plaintiffs works using the BitTorrent file-scaring
network. Id. ¶¶ 1, 24. Plaintiff
seeks statutory damages and declaratory and injunctive relief
prohibiting further infringement of its copyrighted works.
Id. ¶ 34.
Plaintiff has identified Defendant's Internet Protocol
address ("IP address") and Internet Service
Provider ("ISP"), Defendant's identity remains
unknown. Id. ¶ 9. For this reason, Plaintiff
seeks leave to serve a third party subpoena on
Defendant's ISP-RCN Corporation-that would require the
ISP to identify Defendant. Because Defendant has not been
named or served, no response has been filed to Plaintiffs
a party "may not seek discovery from any source"
before, a Rule 26(f) conference unless "authorized by
... a court order." Fed.R.Civ.P. 26(d)(1). "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." Malibu
Media, LLC v. Doe, 64 F.Supp.3d 47, 49 (D.D.C. 2014).
"Good cause to take discovery prior to the Rule 26(f)
conference exists where the discovery is necessary
'before th[e] suit can progress further.'"
Malibu Media, LLC v. Doe, No. 15-cv-986 (RDM), 2015
WL 5173890, at *1 (D.D.C. Sept. 2, 2015) (alteration in
original) (quoting Arista Records LLC v. Does 1-19,
551 F.Supp.2d 1, 6 (D.D.C. 2008)).
plaintiff seeking discovery of the identities of unknown
defendants "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, " i.
e., that the putative defendant is either a District of
Columbia resident or the alleged injury occurred within the
Districtof Columbia. See AF Holdings, LLC v. Does,
752 F.3d 990, 995 (D.C. Cir. 2014); Malibu Media,
LLC, 2015 WL 5173890, at *L. "The Copyright Act
does not provide for the exercise of personal jurisdiction
over alleged infringers on any basis." Malibu Media,
LLC v. Doe, 111 F.Supp.3d 554, 556-57 (D.D.C. 2016)
(citing Exquisite Multimedia, Inc. v. Does 1-336,
No. 11-cv-1976 (RWR/JMF), 2012 WL 177885, at *2 (D.D.C. Jan.
19, 2012)). A plaintiff "must predicate this Court's
jurisdiction over the infringers on the reach of District of
Columbia law." Id. "The only conceivable
way that personal jurisdiction might properly be
exercised" is if the defendant is a "resident[ ] of
the District of Columbia or at least downloaded the
copyrighted work in the District." AF Holdings,
752 F.3d at 996 (citing D.C. Code§ 13-423(a)(3), (4)).
has demonstrated that good cause exists to take discovery
prior to the Rule 26(f) conference. As a preliminary matter,
discovery is necessary because this suit cannot progress
without first identifying Defendant so Plaintiff can effect
service. See Arista Records, LLC, 551 F.Supp.2d at
6. Second, Plaintiff has established a good faith basis for
believing that Defendant is a District of Columbia resident.
Using "proven IP address geolocation technology which
has consistently worked in similar cases, " Plaintiff
determined that "Defendant's acts of copyright
infringement occurred using an [IP address] traced to a
physical address located within" the District of
Columbia. [Dkt. 1, at ¶ 5]. This use of geolocation
service technology, which "enable[s] anyone to estimate
the location of Internet users based on their IP addresses,
" suffices to "provide at least some basis for
determining whether [Defendant] might live in the District of
Columbia." See AF Holdings, LLC, 752 F.3d at
996; see also Nu Image, Inc. v. Does, 799 F.Supp.2d
34, 41 (D.D.C. 2011) (holding that "[p]laintiff has a
good faith basis to believe a putative defendant may
be a District of Columbia resident if a geolocation service
places his/her IP address within the District of Columbia, or
within a city located within 30 miles of the District of
Columbia") (emphasis in original); Malibu Media,
LLC, 2015 WL 5173890, at *2 (same); West Coast Prod
Inc. v. Does, 280 F.R.D. 73, 75 (D.D.C. 2012) (same).
The Court therefore finds that Plaintiff should be permitted
to propound discovery on Defendant's ISP for the purpose
of determining Defendant's identity.
similar cases involving adult content, other courts have
issued protective orders to establish procedural safeguards.
See e.g., Strike 3 Holdings, LLC v. Doe, No.
17-cv-2347 (TJK), 2018 WL 385418, at *2-*3 (D.D.C. Jan. 11,
2018); Malibu Media, LLC v. Doe, No. 15-cv-3504
(JFB/SIL), 2016 WL 4444799, at *2 (E.D.N.Y. Aug. 23, 2016).
"The fact that a copyrighted work was illegally
downloaded from a certain IP address does not necessarily
mean that the owner of that IP address was the
infringer." Media Prods., Inc. v. Does 1-26,
No. 12-cv-3719 (HB), 2012 WL 2190613, at *1 (S.D.N.Y.June 12,
2012). "Indeed, the true infringer could just as easily
be a third party who had access to the internet connection,
such as a son or daughter, houseguest, neighbor, or customer
of a business offering an internet connection."
Id. As such, "[f]here is a real risk that [a]
defendant[ ] might be falsely identified and forced to defend
themselves against unwarranted allegations [or that an]
innocent defendant may be coerced into an unjust settlement
with the plaintiff to prevent the dissemination of publicity
surrounding unfounded allegations." Id. Without
a protective order, "there is no reason to conclude that
adequate protections exist to safeguard the individuals or
entities subscribing to the implicated IP address[ ] against
the danger of 'annoyance, embarrassment, oppression, or
undue burden or expense.'" In re Malibu Media
Adult Film Copyright Infringement Cases, No. 15-cv-1855
(SJF/SIL), 2015 WL 3605834, at *4 (E.D.N.Y. June 8, 2015)
(quoting Fed.R.Civ.P. 26(c)). In light of these
considerations, the Court finds that a protective order is
such, Plaintiff shall be allowed to serve early discovery by
serving a Rule 45 subpoena on the identified ISP that seeks
information sufficient to identify John Doe subscriber
assigned IP address 18.104.22.168, which may include his/her
name, address, telephone number, and email address. Any
information disclosed to Plaintiff in response to a Rule 45
subpoena may be used by Plaintiff solely for the purpose of
pursuing the claim set forth in its Complaint. If and when
the ISP is served with the subpoena, the ISP shall provide
the Defendant with a copy of this Memorandum Opinion and the
accompanying Order with the attached Notice at least ten (10)
business days prior to releasing Defendant's identifying
information to Plaintiff. If either the ISP or Defendant
wishes to move to quash the subpoena, it must do so before
the return date of the subpoena, which shall be no earlier
than thirty (30) days from the date of service. The ISP shall
preserve any information sought in the subpoena pending the
resolution of any timely filed motion to quash. Plaintiff
shall provide the ISP with a copy of this Memorandum Opinion
and the accompanying Order with the attached Notice when it
serves its subpoena. On or before July 31, 2018, Plaintiff
shall file a status report with the Court briefly outlining
its progress, including an expected completion date of the
discovery allowed by the accompanying Order.