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Malibu Media, LLC v. Doe
United States District Court, D. Maryland
February 23, 2018
MALIBU MEDIA, LLC, Plaintiff
v.
JOHN DOE, subscriber assigned IP address 71.127.145.6 Defendant
MEMORANDUM AND ORDER
James
K. Bredar Chief Judge.
The
Court has pending before it this lawsuit brought by Plaintiff
Malibu Media ("Malibu" or "Plaintiff) alleging
copyright infringement and other claims against a single
"John Doe" defendant ("Doe Defendant"),
who is alleged to have utilized the BitTorrent file
distribution network to download adult pornographic films
subject to copyrights held by Malibu. The Doe Defendant has
been identified in the lawsuit only by an Internet Protocol
address[1] ("IP Address") assigned to a
customer on a specific date by an Internet Service Provider
("ISP" or "Provider") and through which
the copyrighted work was allegedly downloaded. Malibu has
filed a motion for leave to serve a third-party subpoena
prior to a Federal Rule of Civil Procedure 26(f) discovery
conference (ECF No. 2). requesting permission to initiate
discovery to identify the account subscriber ("Doe
Subscriber") associated with the IP Address used to
download its copyrighted films, notwithstanding the
provisions of Rule 26(d)(1). which preclude a party from
seeking discover)' from any source before the parties
have conferred as required by Rule 26(f). Malibu contends
that it must be permitted to issue a Rule 45 subpoena to
Providers to identify the customer assigned the IP Address on
the date or dates in question in order to learn the identity
of the person responsible for downloading the copyrighted
works, and that there is no other way for it to obtain this
information.
The
Court is aware that in similar cases filed by plaintiffs in
other jurisdictions against Doe Defendants, concerns have
been raised as to the sufficiency of the allegations of
complaints because association of an IP address with a
customer may be insufficient to state a claim.[2] There also have
been reports of plaintiffs undertaking abusive settlement
negotiations with Doe Defendants due to the pornographic
content in the copyrighted works, the potential for
embarrassment, and the possibility of defendants paying
settlements even though they did not download the plaintiffs
copyrighted material."[3]
Having
considered the concerns raised by other courts that have
addressed similar cases, and Malibu's motion requesting
permission to initiate discovery to identify the John Doe
Subscriber, the Court GRANTS the motion, subject to the
following conditions and limitations:
1. Malibu may obtain from the clerk a Subpoena to be served
on the ISP through which the Doe Subscriber allegedly
downloaded the copyrighted work, and it may serve the ISP in
accordance with Federal Rule of Civil Procedure 45. The
Subpoena may command production of documents and/or
electronically stored information (collectively,
"Information") identifying the Doe Subscriber. The
Subpoena shall have as an attachment a copy of the complaint
filed in this lawsuit, and a copy of this Order.
2. After having been served with the Subpoena, the ISP will
delay producing to Malibu the subpoenaed Information until
after it has provided the Doe Subscriber with
a. Notice that this suit has been filed naming the Doe
Subscriber as the one that allegedly downloaded copyright
protected work;
b. A copy of the Subpoena, the complaint filed in this
lawsuit, and this Order;
c. Notice that the ISP will comply with the Subpoena and
produce to Malibu the Information sought in the Subpoena
unless, within 30 days of service of the Subpoena, the Doe
Subscriber files a motion to quash the Subpoena or for other
appropriate relief in this Court. If a timely motion to quash
is filed, the ISP shall not produce the subpoenaed
Information until the Court acts on the motion.
3. The Doe Subscriber may move to quash the Subpoena
anonymously, but MUST PROVIDE his or her name and current
address to the Clerk of the Court so that the Court may
provide notice of the filings to the Subscriber. This may be
accomplished by completing and mailing to the Clerk of the
Court the attached form. This contact information will not be
disclosed to the Plaintiff and will be used solely for the
purposes stated above. The Court will not decide any motions
until the Doe Subscriber has provided all required
information. If the Doe Subscriber fails to file a motion to
quash the Subpoena or for other appropriate relief within 30
days, the ISP shall provide to Malibu the Information
requested in the Subpoena within 14 days. Malibu"s use
of this Information shall be restricted as further provided
in this Order. Pursuant to Rule 45(c), Malibu shall reimburse
the ISP for its reasonable costs and expenses, including
attorney's fees, associated with complying with the
Subpoena and this Order.
4. On receipt of the Information from the ISP, Malibu must
mark it as "Highly Confidential, ''
and, in the absence of further order of the Court, may only
use it to determine whether, pursuant to Rule 11(b), it has
sufficient information to amend the complaint to name as an
individual defendant the Subscriber. Unless otherwise ordered
by the Court, Malibu. its agents, representatives, and
attorneys may not disclose the Information received from the
ISP to any person not directly involved as an attorney in
representing Malibu in this copyright infringement action
relating to the Information received, except as provided
below. Any person to whom the Information or its contents is
disclosed shall be required to sign an agreement to be bound
by the provisions of this Order, enforceable by an action for
contempt, prior to being informed of the Information or its
contents. Any amended complaint filed by Malibu naming an
individual defendant shall be filed so that the name and any
specifically identifying information is redacted from the
publicly available court docket, to be replaced by first and
last initials only, with an unredacted copy of the amended
complaint filed under seal. If Malibu determines that the
Information received pursuant to the Subpoena is insufficient
to support the filing of an amended complaint, it may
a. Serve a subpoena pursuant to Rule 45(a)(1)(B) commanding
the Subscriber to appear and attend a deposition to answer
questions regarding whether the Subscriber was responsible
for downloading the copyrighted work alleged in the original
complaint.
b. Pursuant to Rule 26(b)(2)(C). the deposition permitted
pursuant to paragraph 4.a of this Order shall not last more
than one hour in duration. Pursuant to Rule 37(a)(4). the
Subscriber shall answer questions fully and unevasively, but
may refuse to answer questions that would require the
disclosure of privileged (including the
5thAmendment privilege against ...