United States District Court Northern District of California
December 28, 2012
READIFY, PTY LTD., AND AUSTRALIAN CORPORATION,
READIFYBLOG, AN INDIVIDUAL, DEFENDANT.
The opinion of the court was delivered by: United States Magistrate Judge Kandis A. Westmore
ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO ENGAGE IN LIMITED THIRD PARTY EXPEDITED DISCOVERY
Plaintiff Readify, Pty Ltd., an Australian corporation, filed this action on October 17, 2012 asserting claims for defamation and tortious interference with prospective economic advantage. (See Compl., Dkt. No. 1., ¶ 4)
The Court is believed to have subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) over the parties, as Plaintiff is a foreign corporation. (Id. at ¶ 9.) Venue is proper as the blog hosting service Automattic, Inc. (d/b/a Wordpress.com) is located within the Northern District of California. (Id. at ¶ 8.)
Plaintiff alleges that Defendant "Readifyblog" is a blog (previously located at www.readifyblog.wordpress.com) being operated by an unknown individual who used the website to damage Plaintiff's reputation. (Compl., ¶¶ 13-17.) On October 30, 2012, Plaintiff filed an eX parte application for permission to take limited, expedited third party discovery in order to obtain the contact information of the individual who signed up for the "Readifyblog" Wordpress.com*fn1 user account. (Ex parte Appl., Dkt. No. 5.) The Court denied that application without prejudice for failure to provide sufficient facts to support a finding of good cause. (Dkt. No. 7.) On
December 24, 2012, Plaintiff submitted a second ex parte application for leave to engage in limited discovery requesting that the Court allow it to serve a subpoena on Automattic, Inc., to obtain "Readifyblog's" user information, so that it can complete service of process and substitute the name of the individual for user "Readifyblog." (Dkt. No. 8.)
As discussed below, Plaintiff has now demonstrated that: (1) the Doe defendant is a real person who may be generally sued in federal court; (2) it has attempted unsuccessfully to identify 7 the Doe defendant prior to filing this motion; (3) its defamation claims against Doe could survive 8 a motion to dismiss; and (4) there is a reasonable likelihood the service of the proposed subpoena 9 on Automattic, Inc. would lead to information identifying Doe. The Court therefore finds that 10 good cause exists to allow Plaintiff to engage in this preliminary discovery. Accordingly, the 11 Court GRANTSPlaintiff's motion as specifically stated below.
A court may authorize early discovery before the Rule 26(f) conference for the parties' 15 and witnesses' convenience and in the interest of justice. Fed. R. Civ. P. 26(d); Civil L.R. 7-10 16 (2012). Courts within the Ninth Circuit generally consider whether a plaintiff has shown "good 17 cause" for the early discovery. See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 18 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010). When the identity of a defendant is unknown 19 before the complaint is filed, a plaintiff "should be given an opportunity through discovery to 20 identify the unknown defendants unless it is clear that discovery would not uncover the identities, 21 or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 22 642 (9th Cir. 1980).
In evaluating whether a plaintiff establishes good cause for attempting to learn the identity of Doe defendants through early discovery, courts examine whether plaintiff (1) has identified the
Doe defendants with sufficient specificity that the court can determine that the defendants are real people who can be sued in federal court, (2) has recounted the steps it has taken to locate and identify the defendant, (3) has demonstrated that the action can withstand a motion to dismiss, and (4) has proved that the discovery is likely to lead to identifying information that will permit service of process. Columbia Ins. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
B. Plaintiff has Shown Good Cause to Permit Early Discovery
Plaintiff has made a sufficient showing under each of the four factors listed above to establish good cause to permit it to engage in early discovery to identify Defendant 6 "Readifyblog." 7 First, Plaintiff has identified Wordpress.com user "Readifyblog" with sufficient specificity 8 by providing the unique username and URL assigned to him/her on the approximate date Plaintiff 9 alleges Defendant engaged in the alleged conduct. (Compl., ¶¶ 13-17.)
Second, and unlike its first application, Plaintiff has adequately described the steps taken 11 to locate and identify Defendant, which proved unsuccessful. (Ex Parte App., Dkt. No. 8, ¶ 2.) 12 There simply is not much investigation that can be performed to identify an otherwise anonymous 13 blog user.
Third, Plaintiff has pled the essential elements to state a prima facie claim for defamation 15 and tortious interference with prospective economic advantage. (Compl., ¶¶ 18-30.) 16 Fourth, Plaintiff has demonstrated that the proposed subpoena seeks information likely to 17 lead to the identifying information necessary for it to effect service of process on Defendant. 18 Specifically, the proposed subpoena requests that Automattic, Inc. produce information sufficient 19 to identify the user through his/her account information, specifically his/her email address, IP 20 address, and any other optional account information that Defendant may have provided 21 Automattic, including name, telephone number, or address. (Ex Parte App., ¶ 4.)
In light of the above, the Court finds good cause to grant Plaintiff leave to conduct early 23 discovery to obtain the registration information for the Wordpress.com user "Readifyblog." 24 Further, the Court finds that permitting Plaintiff to engage in limited, early discovery is consistent 25 with Rule 26(d), as it furthers the interest of justice and poses little, if any, inconvenience to the 26 subpoena recipients.
For the reasons set forth above, the Court GRANTS Plaintiff's Ex Parte Application for 3 Leave to Take Expedited Discovery as follows: 4 1. Plaintiff shall immediately serve a Rule 45 subpoena on Automattic, Inc., the blog host 5 of http://readifyblog.wordpress.com, including the user's electronic mail (e-mail) address and the 6 IP address that Defendant used at the time the account was created, as well the user's optional 7 identifying information, limited to his/her real name, current (physical) address, telephone 8 number, and general location. The subpoena shall have a copy of this Order attached. 9 2. Should any entity subpoenaed pursuant to this Order wish to move to quash the subpoena, it must do so within thirty (30) days from the date of service.
3. The subpoenaed entity shall preserve any subpoenaed information pending the 12 resolution of any timely-filed motion to quash. 13 4. Automattic, Inc. will have thirty (30) days from the date of service upon them to serve 14 user Readifyblog with a copy of the subpoena and a copy of this Order. Automattic, Inc. may 15 serve the user using any reasonable means, including e-mail. 16 5. User Readifyblog shall have thirty (30) days from the date of service upon them to file 17 any motion in this court contesting the subpoena (including motion to quash or modify the 18 subpoena). If that 30-day period lapses without the user contesting the subpoena, Automattic, 19 Inc. shall have ten (10) days to produce the information responsive to the subpoena to Plaintiff. 20 6. Plaintiff and any entity which receives a subpoena shall confer, if necessary, with 21 respect to the issue of payment for the information requested in the subpoena or for resolution of 22 any other issues that may arise concerning compliance with this Court's order. 23 7. Any entity which receives a subpoena and elects to charge for the costs of production 24 shall provide a billing summary and any cost reports that serve as a basis for such billing 25 summary and any costs claimed by such entity.
8. Any information disclosed to Plaintiff in response to this Rule 45 subpoena may be 2 used by Plaintiff solely for the purpose of protecting Plaintiff's rights as set forth in its Complaint.
IT IS SO ORDERED.