                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 MALIBU MEDIA, LLC,

    Plaintiff

           v.                                               Civil No. 14-1322 (CKK)

 JOHN DOE subscriber assigned IP address,
 216.15.51.240,

    Defendant.



                                MEMORANDUM OPINION
                                   (August 15, 2014)

     Presently before the Court is Plaintiff’s [3] Motion for Leave to Serve a Third Party

Subpoena Prior to a Rule 26(f) Conference. Plaintiff, Malibu Media, has filed an action against

Defendant, John Doe, under the Copyright Act of 1976, alleging that Defendant used BitTorrent

file sharing to copy and distribute Plaintiff’s copyrighted works. Plaintiff seeks leave of the

Court to serve a Rule 45 subpoena on John Doe Defendant’s Internet Service Provider, identified

in Exhibits A and B of the Complaint as RCN Corporation, so that Plaintiff may learn

Defendant’s true identity. Upon consideration of the pleadings, 1 the relevant legal authorities,

and the record for purposes of this motion, the Court GRANTS Plaintiff’s Motion for Expedited

Discovery.

                                      I. BACKGROUND

     A. Factual Background

     Plaintiff, Malibu Media LLC, operates a subscription based website comprised of its

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          Compl., ECF No. [4]; Plaintiff’s Motion for Leave to Serve a Third Party Subpoena
Prior to a Rule 26(f) Conference (“Pl.’s Mot.”), ECF No. [3].
copyrighted content. Pl.’s Mot., Ex. 1 (Colette Field Decl.) ¶¶ 8-13. Using Defendant John

Doe’s Internet Protocol (“IP”) address (a series of numbers assigned to each Internet service

subscriber) and IP geolocation technology, Plaintiff’s investigator, IPP International UG (“IPP”),

identified Defendant John Doe’s IP address as using the BitTorrent file distribution network to

access and distribute copyrighted movies owned by Plaintiff. Compl. ¶¶ 2, 5, 18-21.         IPP’s

software traced Defendant’s IP address to a physical address located within the District of

Columbia. Id. ¶ 5. Plaintiff now seeks relief against Defendant, but only knows Defendant by

his or her IP address. Id. ¶ 9.

     B. Procedural Background

     On August 4, 2014, Plaintiff filed suit in this Court, alleging that Defendant John Doe

committed tortious copyright infringement in violation of the United States Copyright Act of

1976, as amended, 17 U.S.C. §§ 101 et seq. The same day, Plaintiff filed a Motion to Expedite

Discovery so that it could identify and properly serve Defendant John Doe. Pl.’s Mot., ECF No.

[3]. Plaintiff alleges that the only way it may identify Defendant is to subpoena the Defendant’s

Internet Service Provider (ISP), RCN Corporation, pursuant to Federal Rule of Civil Procedure

45. Id.

                                   II. LEGAL STANDARD

     A plaintiff who seeks to conduct expedited discovery prior to the Rule 26(f) Conference in

order to learn the identity of putative defendants is in essence seeking jurisdictional discovery.

See Exquisite Multimedia, Inc. v. Does 1-336, No. 11-1976, 2012 WL 177885, at *1 (D.D.C. Jan.

19, 2012). Federal Rule of Civil Procedure 26(d) explains that parties may generally seek

discovery only after a Rule 26(f) conference, “except . . . when authorized by . . . court order.”

Fed. R. Civ. P. 26(d)(1). This Circuit has held that Federal Rule of Civil Procedure 26 “vests the

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trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of

discovery.” Watts v. SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting Crawford-El v. Britton,

523 U.S. 574, 598 (1998)). To determine whether to authorize discovery prior to a Rule 26(f)

conference in a particular case, this district has applied a “good cause” standard. See Warner

Bros. Records Inc. v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C. 2007) (“the Court finds that

plaintiffs have made a showing of good cause for the discovery they seek”). In order to obtain

jurisdictional discovery a “plaintiff must have at least a good faith belief that such discovery will

enable it to show that the court has personal jurisdiction over the defendant.”             Exquisite

Multimedia, Inc., 2012 WL 177885, at *1 (quoting Caribbean Broad. Sys. Ltd. v. Cable &

Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). See also Exponential Biotherapies, Inc. v.

Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C. 2009) (holding that while “as a general

matter, discovery should be freely permitted . . . [j]urisdictional discovery is justified only if the

plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through

discovery.”) (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89 (D.D.C. 2006)).                 “Mere

conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment

Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).

     Plaintiff’s cause of action, tortious copyright infringement, is brought under a federal

statute, the Copyright Act. The Copyright Act does not provide for the exercise of personal

jurisdiction over alleged infringers on any basis. See Exquisite Multimedia, Inc., 2012 WL

177885, at *2. Therefore, Plaintiff must predicate this Court’s jurisdiction over the infringers on

the reach of District of Columbia law. Id. District of Columbia law provides for the exercise of

personal jurisdiction over a person domiciled in the District of Columbia as to “any claim for

relief.” Id. (quoting D.C. Code § 13–422 (2001)). The so-called “long arm” provision of the

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personal jurisdiction statute provides, in pertinent part, as follows:

       (a) A District of Columbia court may exercise personal jurisdiction over a person,
       who acts directly or by an agent, as to a claim for relief arising from the
       person’s—
                                                ***
       (3) causing tortious injury in the District of Columbia by an act or omission in the
          District of Columbia;

D.C. Code § 13–423 (2001). Personal jurisdiction might properly be exercised over Defendant

John Doe if he or she is a resident of the District of Columbia or at least downloaded the

copyrighted work in the District. AF Holdings LLC v. Cox Commc’ns Inc., 752 F.3d 990, 996

(D.C. Cir. 2014) (citing D.C. Code § 23-423(3), (4)). Thus, unless the infringer is domiciled in

the District of Columbia, the question presented is where the infringement occurred and whether

it occurred in the District of Columbia. It is especially important in cases involving allegations

of copyright infringement using an IP address that the plaintiff demonstrate a good faith basis to

believe a putative defendant may be a District of Columbia resident or that the injury occurred in

the District of Columbia. See Nu Image, Inc. v. Doe, 799 F. Supp. 2d 34, 39-40 (D.D.C. 2011).

In AF Holdings LLC the Court of Appeals for the District of Columbia Circuit found that

geolocation services which “enable anyone to estimate the location of Internet users based on

their IP addresses” are “sufficiently accurate to provide at least some basis for determining

whether a particular subscriber might live in the District of Columbia.” AF Holdings LLC, 752

F.3d at 996; see also Nu Image, Inc., 799 F. Supp. 2d at 41 (holding that “the Plaintiff has a good

faith basis to believe a putative defendant may be a District of Columbia resident if a geolocation

service places his/her IP address within the District of Columbia, or within a city located within

30 miles of the District of Columbia.”).




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                                        III. DISCUSSION

     Upon consideration of the relevant legal authorities and Plaintiff’s pleadings, the Court

finds that good cause exists for Plaintiff’s requested expedited discovery. First, Defendant must

be identified before this suit can progress further.   See Arista Records LLC v. Does 1–19, 551

F.Supp.2d 1, 6 (D.D.C. 2008). Second, the Plaintiff has established a good faith basis for

believing the putative defendant may be a District of Columbia resident.              In Plaintiff’s

Complaint, Plaintiff alleges that it used “proven IP address geolocation technology which has

consistently worked in similar cases to ensure that the Defendant’s acts of copyright

infringement occurred using an Internet Protocol address . . . traced to a physical address located

within this District.” See Compl. ¶ 5. Cf. AF Holdings LLC, 752 F.3d at 996 (finding that “AF

Holdings’s refusal to cabin its suit and corresponding discovery requests to individuals whom it

has some realistic chance of successfully suing in this district demonstrates that it has not ‘sought

the information because of its relevance to the issues’ that might actually be litigated here.”)

(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)).          Accordingly, under

the broad discretion granted this Court under the Federal Rule of Civil Procedure 26, this Court

grants Plaintiff leave to serve a Rule 45 subpoena on the ISP identified in Exhibits A and B of

the Complaint, RCN Corporation, for the purpose of identifying the putative Defendant’s true

identity prior to a Rule 26(f) Conference. See Compl., Ex. A (File Hashes for IP Address

216.15.51.240); id., Ex. B (Copyrights-In-Suit for IP Address 216.15.51.240).

      Plaintiff shall be allowed to serve immediate discovery on the identified ISP in order to

obtain the identity of John Doe Defendant by serving a Rule 45 subpoena that seeks information

sufficient to identify John Doe Defendant, including the individual’s name, current and

permanent address, telephone number, e-mail address, and Media Access Control address. Any

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information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff

solely for the purpose of protecting Plaintiff’s rights as set forth in the Complaint. If and when

the ISP is served with a subpoena, the ISP shall give written notice, which may include e-mail

notice, to the subscriber in question within ten (10) business days prior to releasing the

subscriber’s identifying information to Plaintiff. If the ISP and/or Defendant want to move to

quash the subpoena, the party must do so before the return date of the subpoena, which shall be

no earlier than thirty (30) days from the date of service. The ISP shall preserve any subpoenaed

information pending the resolution of any timely filed motion to quash. Plaintiff shall provide

the ISP with a copy of this Memorandum Opinion and the accompanying Order with its

subpoenas. On or before October 14, 2014, Plaintiff shall file a Status Report with the Court

briefly outlining its progress, including providing an expected completion date of the discovery

allowed by the accompanying Order.

                                           IV. CONCLUSION

     For the foregoing reasons, the Court finds that Plaintiff has made a showing of “good

cause” for the expedited discovery it seeks. Accordingly, the Court shall GRANT Plaintiff’s [3]

Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference.

     An appropriate Order accompanies this Memorandum Opinion.


                                                       /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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