Hammer, Michael A., United States Magistrate Judge
In a copyright infringement action, the court granted plaintiff's
motion to serve a third-party subpoena on an ISP after finding that
plaintiff made a sufficient showing that good cause existed permitting it to pursue early discovery and learn the identity of Doe
defendant prior to a Rule 26(f) conference.
Defendant was alleged to have used a file distribution network to download and illegally distribute films subject to copyrights held by plaintiff. Defendant was identified in this lawsuit only by an Internet Protocol address (‘IP Address‘) assigned to a customer on a specific date by Internet Service Provider (‘ISP‘) Optimum Online and through which the copyrighted works were allegedly downloaded.
Plaintiff filed a motion for leave to serve a third-party subpoena prior to a Federal Rule of Civil Procedure 26(f) discovery conference, requesting permission to initiate discovery to identify the account subscriber associated with the IP Address used to download plaintiff's copyrighted films. This motion was made notwithstanding the provision of Rule 26(d)(1) which "precludes a party from seeking discovery from any source before the parties have conferred as required by Rule 26(f)." Plaintiff argued:that a Rule 45 subpoena to the ISP must be permitted to obtain the identity of the customer assigned the IP Address on the dates in question to ascertain the identity of the person responsible for the unauthorized downloading of plaintiff's copyrighted works. Plaintiff further argued that there was no other way to obtain this information.The court evaluated the good cause factors illustrated in Malibu Media, LLC v. John Does 1-11 and found that there was good cause in this case to permit limited discovery prior to the Rule 26(f) conference. The information was necessary to allow plaintiff to identify the appropriate defendant, and to effectuate service of the Amended Complaint. The court explained that:
while the Court certainly recognizes that the IP account holder might not be personally responsible for the alleged infringement, the IP account holder might possess information that assists in identifying the alleged infringer, and thus that information sought by the subpoena is discoverable and relevant under the broad scope of Rule 26.Accordingly, the court granted plaintiff's motion to serve ISP with a subpoena but limited the subpoena's scope to obtaining only the name and address of the IP subscriber.
v.
John Doe subscriber assigned IP address 47.20.202.138