E-Alert Case Updates

Federal Court Permits Expedited Discovery to Identify Defendant in Alleged Copyright Infringement Case

Malibu Media, LLC v. John Doe
No. 14-1324 (CKK) (U.S. District Court for the District of Columbia, August 15, 2014)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1324-8

In Malibu Media, LLC v. John Doe (No. 14-1324, U.S. Dist. Ct., Dist. of Columbia), the Court found that there was good cause for Plaintiff to serve a third party subpoena prior to the Fed. R. Civ. P. 26(f) conference in this case alleging copyright infringement. Plaintiff, Malibu Media, had 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 identified Defendant by his IP (“Internet Protocol”) address (a series of numbers assigned to each Internet service subscriber) and IP geolocation technology, and alleged that Defendant was using the BitTorrent file distribution network to access and distribute copyrighted movies owned by Plaintiff. Plaintiff had traced Defendant’s IP address to a physical address located within the District of Columbia, and sought relief against Defendant, but did not know Defendant’s identity. Plaintiff sought leave of the Court to serve a Rule 45 subpoena on John Doe’s Internet Service Provider (“ISP”), Comcast Cable, so that Plaintiff could learn Defendant’s identity so as to serve him with process. The Court determined that good cause existed to permit the expedited discovery and granted Plaintiff leave to serve the third party subpoena on Comcast prior to the Rule 26(f) conference.

The Court noted that a Plaintiff wishing 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. Under Fed. R. Civ. P. 26(d), 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). However, a trial court has broad discretion to tailor discovery and dictate the sequence of discovery. To determine whether to authorize discovery prior to a Rule 26(f) conference in a particular case, the court applies a “good cause” standard.

Here, Plaintiff’s cause of action, tortious copyright infringement, was brought under a federal statute, the Copyright Act, which does not provide for the exercise of personal jurisdiction over alleged infringers. Thus, the Plaintiff must predicate the Court’s jurisdiction over the infringers on the reach of District of Columbia law. 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. The Court held that there was good cause to permit the expedited Rule 45 subpoena. First, the suit could not progress unless the Defendant was identified, and second, the Plaintiff had established a good faith basis for believing the putative Defendant may be a District of Columbia resident based on its use of IP address geolocation technology which was alleged to be consistently reliable. In sum, under the broad discretion granted by Fed. R. Civ. P. 26, the Court granted Plaintiff leave to serve a Rule 45 subpoena on the internet service provider, Comcast Cable, for the purpose of identifying the putative Defendant’s true identity, and prior to the Rule 26(f) Conference.