United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Leave to Serve a
Third Party Subpoena Prior to a Rule 26(f) Conference. ECF
No. 4. For all the below reasons, the Motion will be granted.
Malibu Media, LLC, owns the rights to certain adult
entertainment films. ECF No. 1 (“Compl.”) ¶
3. Plaintiff alleges that Defendant, currently identified as
John Doe subscriber assigned internet protocol
(“IP”) address 18.104.22.168, has been downloading
and distributing these films using the BitTorrent file
distribution network, a peer-to-peer file sharing system, in
violation of the Copyright Act, 17 U.S.C. §§ 101 et
seq. Compl. ¶¶ 11-26, 33. Plaintiff further alleges
that it used geolocation technology to trace the IP address
used by Defendant to a physical address in the District of
Columbia. Id. ¶ 5. Plaintiff has moved for
leave to serve a third-party subpoena on Defendant's
internet service provider (“ISP”)-RCN
Corporation-to learn Defendant's “true name and
address, ” which would, among other things, allow
Plaintiff to serve process on Defendant. ECF No. 4-1
(“Pl.'s Mem.”) at 3-4. Plaintiff asserts that
it will only use Defendant's name and address to
prosecute the claims in its Complaint. Id.
ordinarily “may not seek discovery from any
source” before a Rule 26(f) conference unless
“authorized . . . by 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) (collecting cases).
“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. 15-986 (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 also “must ‘have at least a good faith
belief that such discovery will enable it to show that the
court has personal jurisdiction over the
defendants.'” AF Holdings, LLC v. Does
1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014) (quoting
Caribbean Broadcasting System, Ltd. v. Cable &
Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)).
“The Copyright Act does not provide for the exercise of
personal jurisdiction over alleged infringers on any
basis.” Malibu Media, LLC v. Doe, 177
F.Supp.3d 554, 556 (D.D.C. 2016) (citing Exquisite
Multimedia, Inc. v. Does 1-336, No. 11-1976 (RWR/JMF),
2012 WL 177885, at *2 (D.D.C. Jan. 19, 2012)). For that
reason, a plaintiff “must predicate this Court's
jurisdiction over the infringers on the reach of District of
Columbia law.” Id. 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.” AF Holdings, LLC,
752 F.3d at 996 (citing D.C. Code § 13-423(a)(3), (4)).
has satisfied the good cause standard to serve discovery
prior to a Rule 26(f) conference. To begin with, “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. 16-639 (RC/AK), 2016
WL 1698263, at *2 (D.D.C. Apr. 27, 2016). According to a
declaration provided by Plaintiff, Defendant's ISP is the
only entity that can identify Defendant by correlating the IP
address linked to the alleged infringement with its
subscriber. Pl.'s Mem., Ex. B ¶ 27.
has also established a good-faith belief that this Court has
personal jurisdiction over Defendant. Plaintiff used
geolocation technology to trace Defendant's IP address to
a physical location within the District of Columbia.
Pl's. Mem. at 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, 2015 WL 5173890, at *2
(quoting A.F. Holdings, 752 F.3d at 996); see also Malibu
Media, 2016 WL 1698263, at *2 (“Using a geolocation
service that estimates that location of Internet users based
on their IP addresses is sufficient to demonstrate a good
faith belief that the court has personal jurisdiction over
the defendant.”); Nu Image, Inc. v. Does 1-23,
322, 799 F.Supp.2d 34, 41 (D.D.C. 2011) (“Plaintiff 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.”)
(emphasis in original). Thus, in its “broad discretion
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)),
the Court authorizes Plaintiff to serve limited discovery on
similar cases involving adult content, courts have found it
appropriate to establish certain procedural safeguards to
protect the privacy interests of the subscriber assigned to
the IP address at issue. See, e.g., Malibu Media, LLC v.
Doe, 308 F.Supp.3d 235, 238-39 (D.D.C. 2018); Strike
3 Holdings, LLC v. Doe, No. 17-2347 (TJK), 2018 WL
385418, at *2-3 (D.D.C. Jan. 11, 2018). “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. 12-3719 (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, ” and “[t]here is a real risk that
defendants might be falsely identified and forced to defend
themselves against unwarranted allegations.”
Id. There is also a risk that “the innocent
defendant may be coerced into an unjust settlement with the
plaintiff to prevent the dissemination of publicity
surrounding unfounded allegations.” Id. In
these circumstances, “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, Nos.
15-1855 (SJF) (SIL) et al., 2015 WL 3605834, at *4 (E.D.N.Y.
June 8, 2015) (quoting Fed.R.Civ.P. 26(c)).
light of these considerations, the Court finds that