United States District Court, W.D. Texas, San Antonio Division
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
the Court is Plaintiff Malibu Media, LLC's, Motion for
Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f)
Conference and Incorporated Memorandum of Law [#5]. On August
19, 2019, the Honorable David A. Ezra referred the motion to
the undersigned for disposition pursuant to Rule 72 of the
Federal Rules of Civil Procedure and Rules CV-72 and 1(c) of
Appendix C of the Local Rules of the United States District
Court for the Western District of Texas. The undersigned has
authority to issue this Order pursuant to 28 U.S.C.
§ 636(b)(1)(A). For the reasons set forth below,
Plaintiff's Motion for Leave to Serve a Third-Party
Subpoena is GRANTED, subject to the
restrictions noted herein.
Factual and Procedural Background
a copyright-infringement case. Plaintiff Malibu Media, LLC
(“Plaintiff”), filed a complaint against John Doe
(“Defendant”) on August 7, 2019 [#1], alleging
violations of the Copyright Act of 1976, as amended, 17
U.S.C. §§ 101-1332. Plaintiff is a limited
liability company that produces adult films and distributes
them through a subscription-based website. (Compl. [#1] at
¶ 8.) Plaintiff claims that Defendant is a
“persistent online infringer” of its copyrights.
(Id. at 2.) Specifically, Plaintiff alleges that
Defendant used BitTorrent, a peer-to-peer, file sharing
protocol that allows users to distribute data and electronic
files over the Internet, to download adult films for which
Plaintiff holds the copyright. (Id. at ¶¶
19-26.) Defendant has been identified only by the Internet
Protocol address (“IP address”) through which the
copyrighted works were allegedly downloaded.
August 16, 2019, Plaintiff filed a motion for leave to serve
a third-party subpoena prior to a Rule 26(f) conference [#5].
Plaintiff does not know Defendant's true identity, but
alleges that its investigator, IPP International UG, used
geolocation technology to trace Defendant's IP address to
a physical location within the Western District of Texas.
(Id. at ¶ 18.) To identify John Doe, Plaintiff
now seeks leave to serve a third-party subpoena on AT&T
U-verse, the Internet service provider (“ISP”)
associated with the IP address that allegedly downloaded
Plaintiff's copyrighted works. As Defendant has not yet
been identified by name, no opposition was filed.
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). District courts have considerable discretion in
discovery matters, and this Court has adopted the
“good-cause” standard to determine whether a
party is entitled to expedited discovery. See,
e.g., Accruent, LLC v. Short, No.
1:17-CV-858-RP, 2017 WL 8811606, at *1 (W.D. Tex. Nov. 8,
2017); Alamo Area Mut. Hous. Ass'n, Inc. v.
Lazenby, No. 5:17-CV-634-DAE, 2017 WL 7052289, at *4
(W.D. Tex. July 19, 2017). Under this standard, “a
court must examine the discovery request on the entirety of
the record to date and the reasonableness of the request in
light of all the surrounding circumstances.” United
Biologics, LLC v. Am. Acad. of Allergy, No.
SA-14-CV-35-OLG, 2014 WL 12637937, at *2 (W.D. Tex. Mar. 20,
2014) (emphasis, internal quotation marks, and citation
omitted). If a plaintiff seeks a subpoena to identify an
anonymous Internet user, the court must also balance the need
for disclosure against the defendant's expectation of
privacy. See Well Go USA, Inc. v. Unknown Participants in
Filesharing Swarm Identified by Hash
4:12-CV-00963, 2012 WL 4387420, at *1 (S.D. Tex. Sept. 25,
2012). In making this determination, courts commonly consider
the following factors:
(1) a concrete showing of a prima facie claim of
actionable harm by the plaintiff;
(2) specificity of the discovery request; (3) the absence of
alternative means to obtain the subpoenaed information; (4) a
central need for the subpoenaed information to advance the
claim; and (5) the user's expectation of privacy.
Malibu Media, LLC v. John Doe, No. SA-19-CV-599-XR,
at *2 (W.D. Tex. July 23, 2019) (quoting Well Go
USA, 2012 WL 4387420, at *1). “The burden of
showing good cause is on the party seeking the expedited
discovery, and the subject matter related to requests for
expedited discovery should be narrowly tailored in
scope.” Stockade Companies, LLC v. Kelly Rest.
Grp., LLC, No. 1:17-CV-143-RP, 2017 WL 2635285,
at *2 (W.D. Tex. June 19, 2017).
Court is satisfied that Plaintiff has met its burden of
showing that good cause exists to permit limited expedited
discovery. The other judges in the Western District of Texas
to have considered the issue have reached the same
conclusion. See Malibu Media, LLC v. John Doe, No.
SA-19-CV-632-OLG (W.D. Tex. Aug. 1, 2019); Malibu Media,
LLC v. John Doe, Infringer Using IP Address
220.127.116.11, No. SA-19-CA-621-DAE (W.D. Tex. Aug. 1,
2019); Malibu Media, No. SA-19-CV-599-XR; Malibu
Media, LLC v. John Doe, infringer using IP address
18.104.22.168, No. 5:19-CV-00600-FB (W.D. Tex. July 19,
establish copyright infringement, two elements must be
proven: “(1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are
original.” Feist Publications, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361 (1991). Here, Plaintiff
alleges that it is the owner of the nine copyrights-in-suit;
that Defendant copied and distributed the constituent
elements of each of the original works covered by the
copyrights-in-suit; and that Plaintiff did not authorize or
consent to this distribution. Therefore, Plaintiff has pled a
prima facie case of copyright infringement.
addition, as Defendant is known only by his or her IP
address, there is no other way for Plaintiff to obtain this
information. Finally, Plaintiff's need for the subpoenaed
information is significant, and an ISP subscriber has
“a minimal expectation of privacy in the sharing of
copyrighted material.” Malibu Media, LLC v. John
Does 1-11, No. 12 CIV. 3810 ER, 2013 WL 3732839, at *6
(S.D.N.Y. July 16, 2013); see also Sony Music Entm't
Inc. v. Does 1-40, 326 F.Supp.2d 556, 567 (S.D.N.Y.
2004) (“[D]efendants' First Amendment right to
remain anonymous must give way to plaintiffs' right to
use the judicial process to pursue what appear to be
meritorious copyright infringement claims.”);
Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 8