United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
the Court is Malibu Media LLC's Motion for Leave to Serve
a Third Party Subpoena Prior to a Rule 26(f) Conference. Dkt.
4. For the reasons that follow, the Court will grant the
motion. Malibu Media shall serve its subpoena consistent with
this opinion and the accompanying order.
Media owns a subscription-based pornography website.
See Compl. ¶ 2, Dkt. 1; Pl.'s Mem. at 3,
Dkt. 4-1. It alleges that the unnamed defendant John Doe, via
Internet Protocol (IP) address 184.108.40.206, infringed
copyrighted material by copying and distributing videos in
violation of the Copyright Act, 17 U.S.C. §§ 101
et seq. Compl. ¶¶ 2, 30-35. Malibu Media
does not know John Doe's true identity, but alleges that
its investigator used geolocation technology to trace John
Doe's IP address to the District of Columbia.
Id. ¶ 5. To identify John Doe, Malibu Media now
seeks leave to serve a subpoena on John Doe's Internet
Service Provider (ISP), Verizon Internet Services, pursuant
to Rule 45 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
. . . when authorized by . . . court order.”
Fed.R.Civ.P. 26(d)(1). Courts have “wide discretion in
discovery matters, ” and this Circuit applies a
“good cause” standard for determining whether to
authorize discovery before a Rule 26(f) conference.
Malibu Media, LLC v. Doe, 64 F.Supp.3d 47, 49
(D.D.C. 2014) (quoting Warner Bros. Records v. Does
1-6, 527 F.Supp.2d 1, 2 (D.D.C. 2007)).
establish “good cause, ” a plaintiff must (1)
show that the “discovery is necessary before th[e] suit
can progress further” and (2) have “at least a
good faith belief such discovery will enable it to show that
the court has personal jurisdiction over the
defendant.” Malibu Media, LLC v. Doe, No.
15-cv-0986, 2015 WL 5173890, at *1 (D.D.C. Sept. 2, 2015)
(internal quotation marks omitted); Caribbean Broad. Sys.
Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090
(D.C. Cir. 1998). Under the District of Columbia's
long-arm statute, “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.” See AF Holdings, LLC v. Does
1-1058, 752 F.3d 990, 996 (D.C. Cir. 2014) (citing D.C.
Code § 13-423(a)(3), (4)).
Media has established “good cause.” First, Malibu
Media has shown that “this suit cannot move forward
without Plaintiff first being able to identify Defendant so
that service can be effected.” Malibu Media, LLC v.
Doe, No. 16-cv-0639, 2016 WL 1698263, at *2 (D.D.C. Apr.
27, 2016). According to a declaration provided by Malibu
Media, John Doe's ISP is the only entity that can
identify John Doe by correlating the IP address to the
alleged infringement. Paige Decl. ¶ 14, Dkt. 4-3;
see also Pl.'s Mem. at 8 (“Other than
receiving the information from the Defendant's ISP, there
is no way to obtain Defendant's true identity.”).
Second, Malibu Media has presented a “good faith
belief” that this Court has personal jurisdiction over
John Doe. In particular, Malibu Media alleges that its
investigator used geolocation technology to trace John
Doe's IP address to the District of Columbia. Compl.
¶¶ 5-6. The D.C. Circuit has “suggested that
reliance on ‘geolocation services' of this sort is
sufficient to justify a ‘good faith belief' that a
district court has personal jurisdiction over unknown
defendants.” Malibu Media, LLC v. Doe, 2015 WL
5173890, at *2 (quoting AF Holdings, 752 F.3d at
996). And district courts have relied on geolocation services
to reach just that conclusion. See, e.g.,
id.; Malibu Media, LLC v. Doe, No 18-0600,
2018 WL 1730308, at *2-3, (D.D.C. Apr. 10, 2018); Strike
3 Holdings, LLC v. Doe, No. 17-cv-2347, 2018 WL 385418,
at *2-3 (D.D.C. Jan. 11, 2018).
good cause exists, the Court will exercise its “broad
discretion to . . . dictate the sequence of discovery”
by granting Malibu Media's motion. Watts v. SEC,
482 F.3d 501, 507 (D.C. Cir. 2007). Accordingly, the Court
will authorize Malibu Media to serve a Rule 45 subpoena on
John Doe's ISP directing the ISP to provide Malibu Media
with the identity of the John Doe defendant currently
identified by the IP address 220.127.116.11. This discovery
may be used only for the limited purpose of protecting and
enforcing Malibu Media's rights as set forth in its
cases alleging infringement of copyrighted pornography, some
courts have issued protective orders and established other
procedural safeguards when granting leave to subpoena an ISP.
See, e.g., Malibu Media, LLC v. Doe, 2018
WL 1730308, at *2-3; Strike 3 Holdings, LLC v.
Doe, 2018 WL 385418, at *2-3; Malibu Media, LLC v.
Doe, No. 15-cv-3504, 2016 WL 4444799, at *2 (E.D.N.Y.
Aug. 23, 2016). A court, upon a showing of “good cause,
” may issue an order to protect a party from
“annoyance, embarrassment, oppression, or undue
burden.” Fed.R.Civ.P. 26(c). The party requesting the
protective order generally bears the burden of showing good
cause “by demonstrating specific evidence of the harm
that would result.” Strike 3 Holdings, LLC v.
Doe, No. 18-cv-0810, 2018 WL 2209207, at *3 (D.D.C. May
14, 2018) (internal quotation marks omitted). Here, Malibu
Media has not requested a protective order,
and—obviously—the unidentified and unserved
defendant has not requested a protective order. In the
absence of any such request or any other suggestion of good
cause, the Court will not issue a general protective order at
the defendant receives notice of this litigation, however,
the defendant “may well assert an interest in anonymity
that would warrant the issuance of a protective order.”
Id. As other courts have explained, “[t]he
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.” Malibu
Media, LLC v. Doe, 2018 WL 1730308, at *2-3 (internal
quotation marks omitted). The alleged copyright infringer
could be a third party who had access to the internet
connection, such as a family member, friend, or even a
hacker. In such cases, “[t]here is a real risk that
defendants might be falsely identified and forced to defend
themselves against unwarranted allegations” and an
“innocent defendant may be coerced into an unjust
settlement with the plaintiff to prevent the dissemination of
publicity surrounding unfounded allegations.”
these reasons, the Court will impose a number of procedural
safeguards to “avoid prejudicing Defendant's
ability to seek [a protective order] in the future.”
Id. In particular, Malibu Media shall not disclose
the defendant's identity for a limited period of 30 days
from the date that Malibu Media obtains the identity of the
defendant from the ISP. And if the defendant wishes to
proceed anonymously in this litigation, the defendant shall
file a motion for a protective order within 30 days from the
date the defendant receives written ...