Malibu Media, LLC v. Doe ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MALIBU MEDIA, LLC,
Plaintiff,
v.
Civil Action No. 16-2014 (DLF)
JOHN DOE subscriber assigned IP address
173.73.209.130,
Defendant.
MEMORANDUM OPINION
Before 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.
I. BACKGROUND
Malibu 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 173.73.209.130, 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
technology1 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
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Malibu Media states that “[b]ased upon experience filing over 1,000 cases the geolocation
technology used by Plaintiff has proven to be accurate to the District level in over 99% of the
cases.” Compl. ¶ 6.
Provider (ISP), Verizon Internet Services, pursuant to Rule 45 of the Federal Rules of Civil
Procedure.
II. LEGAL STANDARD
Generally, “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)).
To 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)).
III. ANALYSIS
Malibu 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.
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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).
Because 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 173.73.209.130. This discovery may
be used only for the limited purpose of protecting and enforcing Malibu Media’s rights as set
forth in its complaint.
IV. PROCEDURAL SAFEGUARDS
In 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,
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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 this time.
Once 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.” Id.
For 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
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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 notice of the
subpoena from the ISP. The accompanying order describes in further detail the procedures that
shall govern expedited discovery in this case.
CONCLUSION
For the foregoing reasons, the Court grants Malibu Media LLC’s Motion for Leave to
Serve a Third Party Subpoena Prior to a Rule 26(f) Conference, Dkt. 4. A separate order
consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: June 12, 2018
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