Art of Living Foundation v. Expedited Discovery

The opinion of the court was delivered by: Laurel Beeler United States Magistrate Judge

COURT OURT C C DOES 1-10, [ECF No. 5] ISTRICT ISTRICT D D I. INTRODUCTION TATES TATES On November 5, 2010, Plaintiff Art of Living Foundation filed this lawsuit against Doe S S NITED NITED U U For the Northern District of California For the Northern District of California

ORDER RE PLAINTIFF'S MOTION FOR ADMINISTRATIVE RELIEF TO TAKE

For the Northern District of California COURT C ISTRICT TATES Because the individuals have published the statements under pseudonyms, Plaintiff does not know S NITED U their identities and is unable to name them in the Complaint or to complete service of process on 19 them. Id. ¶ 59; Motion, ECF No. 5 at 3; Declaration of Karl S. Kronenberger, ¶¶ 4, 6, 7, ECF No. 6 20 at 2, 5 6. Plaintiff therefore requests that, pursuant to Federal Rule of Civil Procedure 26(d), the 21 Court grant it leave to serve supboeans on Google, Inc., and Automattic, Inc., which operate the sites 22 that host the blogs, so that Plaintiff may obtain the names and locations of the Doe Defendants. 23 Motion, ECF No. 5 at 4-5. 24 III. DISCUSSION 25 A. Legal Standard for Leave to Take Early Discovery 26 A court may authorize early discovery before the Rule 26(f) conference for the parties' and 27 witnesses' convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts in this district 28 generally consider whether a plaintiff has shown "good cause" for the early discovery. See, e.g., IO 1Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010); 2 Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-277 (N.D. Cal. 2002). Other 3 districts in the Ninth Circuit apply the same standard. See, e.g., Texas Guaranteed Student Loan 4 Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at * 2 (E.D. Cal. June 9, 2010); United States 5 v. Distribuidora Batiz CGH, S.A. De C.V., No C 07-370, 2009 WL 2487971, at *10 (S.D. Cal. Aug. 6 10, 2009); Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz. 7 2001) (collecting cases and standards). 8 When the identity of defendants is not known before a complaint is filed, a plaintiff "should be 9 given an opportunity through discovery to identify the unknown defendants, unless it is clear that 10 discovery would not uncover the identities, or that the complaint would be dismissed on other 11 grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). In evaluating whether a plaintiff 12 establishes good cause to learn the identity of Doe defendants through early discovery, courts

For the Northern District of California court can determine that the defendant is a real person who can be sued in federal court, (2) recounts 15 the steps taken to locate and identify the defendant, (3) demonstrates that the action can withstand a D 16 motion to dismiss, and (4) proves that the discovery is likely to lead to identifying information that

COURT 13 examine whether the plaintiff (1) identifies the Doe defendant with sufficient specificity that the C ISTRICT

TATES 17 will permit service of process. Io Group, 2010 WL 4055667 at * 1; Columbia Ins. Co. v. S UNITED Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). 19 B. Plaintiff Has Shown Good Cause Here, Plaintiff has made a sufficient showing under each of the four factors listed above to 21 establish good cause to permit it to engage in early discovery to identify the Doe Defendants. 22 First, Plaintiff has identified the possible Doe defendants with sufficient specificity by 23 identifying the pseudonyms they have used to post defamatory statements about Plaintiff and to post 24 Plaintiff's copyrighted materials and trade secrets. See Kronenberger Decl., ¶¶ 3, 4, 6, 7, ECF No. 6 25 at 2, 6. 26 Second, Plaintiff has adequately described the steps taken to locate and identify the Doe 27 defendants. See Kronenberger Decl., ¶ 3, ECF No. 6 at 3. Plaintiff has reviewed the posts on the 28 Blogspot and Wordpress blogs to ascertain information identifying the blogs' respective authors and 1 contributors. Id. However, the individuals have used fictitious names when posting their statements 2 about Plaintiff. Id. ¶¶ 3, 4, 6, 7. 3 Third, reviewing Plaintiff's Complaint, Plaintiff has sufficiently asserted the essential elements 4 and facts in support of each of its four claims. See Compl. ECF No. 1 at 13-18. 5 Fourth, Plaintiff has demonstrated that the subpoena seeks information likely to lead to 6 identifying information that will allow Plaintiff to effect service of process on the Doe defendants. 7 The first subpoena is directed to Google, Inc., which owns Blogger, the host of the Blogspot Blog, 8 and seeks account information, such as the name, address, phone number, Internet protocol (IP) 9 address, Media Access Control (MAC) address, and email addresses associated with: (1) the 10 individual(s) who established and maintain control of the blog located at 11 artoflivingfree.blogspot.com; (2) the Blogger User Profile associated with the blog: AoL-Free; and 12 (3) the email account reklawyksekul@gmail.com. See Ex. A to Kroenenberger Decl., ECF No. 6-1

For the Northern District of California sufficient to identify the user data and account holder of: (1) the individual(s) who established and 15 maintain control of the blog located at aolfree.wordpress.com; (2) and the WordPress usernames D 16 "Skywalker," "Peaceful Warrior," "Prosecutor," and "Aolwhistleblower"; and (3) the Gravatar

COURT 13 at 7. In its second proposed subpoena directed to Automattic, Inc., Plaintiff seeks information C ISTRICT

TATES 17 profiles for "Aolwhistleblower," "Mcauthon," "Skyklim," and "artoflivingfeedback" associated with S UNITED the blog. Thus, the information sought is minimally intrusive on Google, Inc. and Automattic, and 19 the subpoenas are narrowly tailored to seek only information that will allow Plaintiff to identify

20 those operating the blogs and posting the alleged defamatory statements and Plaintiff's intellectual 21 property. See Ex. B to Kronenberger Decl., ECF No. 6-1 at 9-14. 22 Taken together, the Court finds that the foregoing factors demonstrate good cause exists to grant 23 Plaintiff leave to conduct early discovery to identify the Doe Defendants. See Semitool, 208 F.R.D. 24 at 276. Further, the Court finds that early discovery furthers the interests of justice and poses little, 25 if any, inconvenience to the subpoena recipients. Permitting Plaintiff to engage in this limited, early 26 discovery is therefore consistent with Rule 26(d). 27 / / / 28 / / /

IV. CONCLUSION 2 For the reasons stated above, 3 The Court GRANTS Plaintiff's Motion for Administrative Relief (ECF No. 5) as follows. 4 Plaintiff may serve discovery on Google, Inc., and Automattic, Inc., to obtain information regarding 5 the identities of the Doe Defendants in accordance with the following procedure. 6 1. Plaintiff shall issue and serve the proposed subpoenas attached as Exhibits A and B to the 7 Kronenberger Declaration on Google, Inc., and Automattic, Inc., respectively, along with a copy of 8 this Order. 9 2. Google Inc. and Automattic, Inc., will have 20 days from the date of service upon them to 10 serve the account holders with a copy of the subpoena and a copy of this Order. Google, Inc. and 11 Automattic, Inc., may provide notice using any reasonable means, including written notice sent to 12 the account holder's last known address, transmitted either by first-class mail or via overnight

COURT COURT service. C C