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,

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.

. To identify John

Doe, Malibu Media now seeks leave to serve a subpoena on John Doe’s Internet Service

1 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,

(D.D.C. 2014) (quoting Warner

Bros. Records v. Does 1-6,

(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,

, at *1 (D.D.C. Sept. 2, 2015) (internal quotation

marks omitted); Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC,

(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,

(D.C. Cir. 2014) (citing

-

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,

, at *2 (D.D.C.

2 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,

, at *2 (quoting AF Holdings,

). 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,

, at *2–3, (D.D.C. Apr. 10, 2018); Strike 3

Holdings, LLC v. Doe, No. 17-cv-2347,

, 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,

(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,

, at *2–3; Strike 3 Holdings, 3 LLC v. Doe,

, at *2–3; Malibu Media, LLC v. Doe, No. 15-cv-3504,

, 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,

, 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.”

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,

, 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.”

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.”

In particular,

Malibu Media shall not disclose the defendant’s identity for a limited period of 30 days from the

4 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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