UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MALIBU MEDIA, LLC,
Plaintiff
Civil No. 14-129 (CKK)
v.
JOHN DOE subscriber assigned IP address,
76.21.211.211,
Defendant.
MEMORANDUM OPINION
(May 28, 2014)
Presently before the Court is Plaintiff’s [3] Motion for Leave to Serve a Third-Party
Subpoena Prior to a Rule 26(f) Conference. Plaintiff, Malibu Media, has filed an action against
Defendant, John Doe, under the Copyright Act of 1976, alleging that Defendant used BitTorrent
to copy and distribute Plaintiff’s copyrighted works. Plaintiff seeks leave of the Court to serve a
Rule 45 subpoena on John Doe Defendant’s Internet Service Provider, identified in Exhibits A
and B of the Complaint as Comcast Cable, so that Plaintiff may learn Defendant’s true identity.
Upon consideration of the pleadings,1 the relevant legal authorities, and the record for purposes
of this motion, the Court GRANTS Plaintiff’s Motion for Expedited Discovery.
I. BACKGROUND
A. Factual Background
Plaintiff, Malibu Media LLC, operates a subscription based website comprised of its
copyrighted content. Pl.’s Mot., Ex. 1 (Colette Field Decl.), at ¶¶ 8-10. Using Defendant John
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Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference (“Pl.’s Mot.”), ECF No. [3].
Doe’s Internet Protocol (IP) address (a series of numbers assigned to each Internet service
subscriber) and IP geolocation technology, Plaintiff’s investigator, IPP International UG (“IPP”),
identified Defendant John Doe’s IP address as using the BitTorrent file distribution network to
access and distribute copyrighted movies owned by Plaintiff. Compl. ¶¶ 2, 5, 18-21. IPP’s
software traced Defendant’s IP address to a physical address located within the District of
Columbia. Compl. ¶ 5. Plaintiff now seeks relief against Defendant, but only knows Defendant
by his, her, or its IP address. Compl. ¶ 9.
B. Procedural Background
On January 30, 2014, Plaintiff filed its [1] Complaint with this Court, alleging that
Defendant John Doe committed tortious copyright infringement in violation of the United States
Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq. The same day, Plaintiff filed a
Motion to Expedite Discovery so that it could identify and properly serve Defendant John Doe.
Pl.’s Mot., ECF No. [3]. Plaintiff alleges that the only way it may identify Defendant is to
subpoena the Defendant’s Internet Service Provider (ISP), Comcast Cable, pursuant to Federal
Rule of Civil Procedure 45. Id.
II. LEGAL STANDARD
A plaintiff who seeks 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.
See Exquisite Multimedia, Inc. v. Does 1-336, 2012 WL 177885, at *1 (D.D.C. Jan. 19, 2012).
Federal Rule of Civil Procedure 26(d) explains that 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). This Circuit has held that Federal Rule of Civil Procedure 26 “vests the trial judge with
broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.” Watts v.
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Sec. & Exch. Comm'n, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting Crawford-El v. Britton, 523
U.S. 574, 598 (1998)). 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. See Warner
Bros. Records Inc. v. Does 1-6, 527 F. Supp. 2d 1, 2 (D.D.C. 2007) (“the Court finds that
plaintiffs have made a showing of good cause for the discovery they seek”). In order to obtain
jurisdictional discovery a “plaintiff 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.” Exquisite
Multimedia, Inc., 2012 WL 177885, at *1 (quoting Caribbean Broad. Sys. Ltd. v. Cable &
Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). See also Exponential Biotherapies, Inc. v.
Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C. 2009) (holding that while “as a general
matter discovery should be freely permitted, jurisdictional discovery is justified only if the
plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through
discovery”) (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89 (D.D.C. 2006)). “Mere conjecture
or speculation” is not enough to justify jurisdictional discovery. FC Investment Group LC v. IFX
Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).
Plaintiff’s cause of action, tortious copyright infringement, is brought under a federal statute,
the Copyright Act. The Copyright Act does not provide for the exercise of personal jurisdiction
over alleged infringers on any basis. See Exquisite Multimedia, Inc., 2012 WL 177885, at *2.
Therefore, Plaintiff must predicate this Court’s jurisdiction over the infringers on the reach of
District of Columbia law. Id. District of Columbia law provides for the exercise of personal
jurisdiction over a person domiciled in the District of Columbia as to “any claim for relief.” Id.
(quoting D.C. Code § 13–422 (2001)). The so-called “long arm” provision of the personal
jurisdiction statute provides, in pertinent part, as follows:
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(a) A District of Columbia court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a claim for relief arising from the
person’s—
***
(3) causing tortious injury in the District of Columbia by an act or omission in the
District of Columbia;
D.C. Code § 13–423 (2001). Personal jurisdiction might properly be exercised over
Defendant John Doe if it is a resident of the District of Columbia or at least downloaded the
copyrighted work in the District. AF Holdings LLC v. Cox Commc’ns Inc., --- F.3d ---, 2014 WL
2178839, *4 (citing D.C. Code § 23-423(3), (4)). Thus, unless the infringer is domiciled in the
District of Columbia, the question presented is where the infringement occurred and whether it
occurred in the District of Columbia. It is especially important in cases involving allegations of
copyright infringement using an IP address that the plaintiff demonstrate a good faith basis to
believe a putative defendant may be a District of Columbia resident or that the injury occurred in
the District of Columbia. See Nu Image, Inc. v. Doe, 799 F. Supp. 2d 34, 37 (D.D.C. 2011). In
AF Holdings LLC the Court of Appeals for the District of Columbia Circuit found that
geolocation services which “enable anyone to estimate the location of Internet users based on
their IP addresses” are “sufficiently accurate to provide at least some basis for determining
whether a particular subscriber might live in the District of Columbia.” AF Holdings LLC, 2014
WL 2178839, *4; see also Nu Image, Inc., 799 F. Supp. 2d at 41 (holding that “the 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, or within a city
located within 30 miles of the District of Columbia.”).
III. DISCUSSION
Upon consideration of the relevant legal authorities and Plaintiff’s pleadings, the Court
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finds that good cause exists for Plaintiff’s requested expedited discovery. First, Defendant must
be identified before this suit can progress further. See Arista Records LLC v. Does 1–19, 551
F.Supp.2d 1, 6 (D.D.C. 2008). Second, the Plaintiff has established a good faith basis for
believing the putative defendant may be a District of Columbia resident. In Plaintiff’s
Complaint, Plaintiff alleges that it used “proven IP address geolocation technology which has
consistently worked in similar cases to ensure that the Defendant’s acts of copyright
infringement occurred using an Internet Protocol address . . . traced to a physical address located
within this District.” See Compl. ¶ 5. Cf. AF Holdings LLC, 2014 WL 2178839, *5 (finding that
“AF Holdings’s refusal to cabin its suit and corresponding discovery requests to individuals
whom it has some realistic chance of successfully suing in this district demonstrates that it has
not ‘sought the information because of its relevance to the issues’ that might actually be litigated
here.”) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)). Accordingly,
under the broad discretion granted this Court under the Federal Rule of Civil Procedure 26 this
Court grants Plaintiff leave to serve a Rule 45 subpoena on the ISP identified in Exhibits A and
B of the Complaint, Comcast Cable, for the purpose of identifying the putative Defendant’s true
identity prior to a Rule 26(f) Conference.
Plaintiff shall be allowed to serve immediate discovery on the identified ISP in order to
obtain the identity of John Doe Defendant by serving a Rule 45 subpoena that seeks information
sufficient to identify John Doe Defendant, including the individual's name, current and
permanent address, telephone number, e-mail address, and Media Access Control address. Any
information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff
solely for the purpose of protecting Plaintiff’s rights as set forth in the Complaint. If and when
the ISP is served with a subpoena, the ISP shall give written notice, which may include e-mail
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notice, to the subscriber in question within ten (10) business days prior to releasing the
subscriber’s identifying information to Plaintiff. If the ISP and/or Defendant want to move to
quash the subpoena, the party 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 subpoenaed
information 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 its
subpoenas. On or before July 28, 2014, Plaintiff shall file a Status Report with the Court briefly
outlining its progress, including providing an expected completion date of the discovery allowed
by the accompanying Order.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has made a showing of “good
cause” for the expedited discovery it seeks. Accordingly, the Court shall GRANT Plaintiff’s
Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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