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Malibu Media, LLC, A California v. John Does 1 Through 35

June 28, 2012


The opinion of the court was delivered by: David H. BARTICKUnited States Magistrate Judge


On May 15, 2012, Plaintiff Malibu Media, LLC filed a Motion for Leave to Serve Third Party Subpoena Prior to a Rule 26(f) Conference. (Pl.'s Mot. Leave Serve Third Party Subpoena ("Motion"), ECF No. 4.) Because no Defendant has been named or served, no opposition or reply briefs have been filed. On June 8, 2012, the Court issued an order vacating the June 12, 2012 hearing on Plaintiff's Motion after finding the matter suitable for decision without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 5.) For the reasons discussed below, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.


On May 9, 2012, Plaintiff filed a Complaint against John Does 1 through 35 ("Defendants"). (Compl., ECF No. 1.) Plaintiff purports to have obtained the copyright registration, or applied to obtain registration, for numerous adult entertainment movies.*fn1 (Compl. at ¶¶ 3, 13 and 48; Compl., Ex. B, ECF No. 1-2.) First, Plaintiff alleges a claim for copyright infringement, stating that Defendants reproduced and distributed Plaintiff's copyrighted works through the Internet without Plaintiff's authorization. (Compl. at ¶¶ 49-51.) Second, Plaintiff pleads contributory copyright infringement, alleging that Defendants illegally obtained the copyrighted works and assisted others in doing the same. (Compl. at ¶¶ 56-61.)

On May 15, 2012, less then one week after filing the Complaint, Plaintiff filed the instant Motion in which Plaintiff seeks leave to take early discovery to learn the identities of the Doe Defendants from their respective Internet Service Providers ("ISPs"). Specifically, Plaintiff seeks an order permitting it to serve Rule 45 subpoenas on the third party ISPs and any related intermediary ISPs demanding the true name, address, telephone number, e-mail address and Media Access Control ("MAC") address of the Defendant to whom the ISP issued an Internet Protocol ("IP") address. (Motion at 1:18-21.) Plaintiff attached to its Motion a list of the IP addresses associated with the subscribers it hopes to identify as Defendants. (See Decl. Tobias Feiser ("Feiser Decl."), Ex. B., ECF No. 4-4.)


In the Complaint, Plaintiff alleges that the thirty-five Doe Defendants collectively infringed its copyrighted works using a BitTorrent file transfer protocol. (Compl. at ¶¶ 16-44.) The Defendants are purportedly a collection of "BitTorrent users" or "peers" whose computers are connected for the purpose of sharing a file, otherwise known as a "swarm." (Compl. at ¶ 17 ("The BitTorrent protocol's popularity stems from its ability to distribute a large file without creating a heavy load on the source computer and network. In short, to reduce the load on the source computer, rather than downloading a file from a single source computer (one computer directly connected to another), the BitTorrent protocol allows users to join a 'swarm' of host computers to download and upload from each other simultaneously (one computer connected to numerous computers).").)

Plaintiff alleges that following Defendants' unlawful infringement of its copyrighted works using the BitTorrent protocol and file-sharing "swarm," Plaintiff retained IPP, Limited ("IPP"), a computer forensic investigation firm, to identify the IP addresses being used to participate in the infringement. (Compl. at ¶ 38.) Plaintiff further alleges that IPP utilized computer forensic software to determine that each Defendant copied a portion of Plaintiff's copyrighted works during the same series of transactions and that Defendants were identified by their IP addresses. (Compl. at ¶¶ 39-44.)


Generally, discovery is not permitted without a court order before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). "[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant." Columbia Ins. Co. v., 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Requests for early or expedited discovery are granted upon a showing by the moving party of good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002) (applying "the conventional standard of good cause in evaluating Plaintiff's request for expedited discovery").

"The Ninth Circuit has held that when the defendants' identities are unknown at the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to determine the defendants' identities 'unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.'" 808 Holdings, LLC v. Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 2012 U.S. Dist. LEXIS 62980, *7 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at 642). "A district court's decision to grant discovery to determine jurisdictional facts is a matter of discretion." Columbia Ins., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)).

District courts apply a three-factor test when considering motions for early discovery to identify certain defendants. Id. at 578-80. First, "the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court." Id. at 578. Second, the plaintiff "should identify all previous steps taken to locate the elusive defendant" to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 579. Third, the "plaintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss." Id. (citing Gillespie, 629 F.2d at 642). "[T]o prevent abuse of this extraordinary application of the discovery process and to ensure that the plaintiff has standing to pursue an action against defendant," plaintiff must show that some act giving rise to liability actually occurred and that the discovery is aimed at identifying the person who allegedly committed the act. Id. at 579-80 (citing Plant v. Various John Does, 19 F. Supp. 2d 1316, 1321 n.2 (S.D. Fla. 1998)).


Plaintiff seeks an order permitting it to subpoena three ISPs for documents and information sufficient to identify the subscribers of the assigned IP addresses listed in Exhibit B to declaration of Tobias Feiser filed in support of Plaintiff's Motion: (1) Cox Communications; (2) Road Runner; and (3) Verizon Internet Services. (Feiser Decl., Ex. B.) Out of the thirty-five corresponding IP addresses listed in Exhibit B, thirty-two are located in this judicial district. (Feiser Decl., Ex. B.) However, three are located outside of this judicial district: Doe 22 (Yucca Valley, California); Doe 34 (La Quinta, California); and Doe 35 (Hesperia, California). (Feiser Decl., Ex. B.)

A. Identification of Missing Parties with Sufficient Specificity

First, Plaintiff must identify the Doe Defendants with enough specificity to enable the Court to determine that the defendant is a real person or entity who would be subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. This court has "determined that a plaintiff identifies Doe defendants with sufficient specificity by providing the unique IP addresses assigned to an individual defendant on the day of the allegedly infringing conduct, and by using 'geolocation technology' to trace the IP addresses to a physical point of origin." 808 Holdings, 2012 U.S. Dist. LEXIS 62980, at *10 (quoting OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ, 2011 U.S. ...

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