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Readify, Pty Ltd., and Australian Corporation v. Readifyblog

December 28, 2012

READIFY, PTY LTD., AND AUSTRALIAN CORPORATION,
PLAINTIFF,
v.
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

I.BACKGROUND

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.

II.DISCUSSION

A.Legal Standard

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 ...


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