United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S RENEWED MOTION FOR EARLY DISCOVERY Re: Dkt. No. 19
JACQUELINE SCOTT CORLEY, Magistrate Judge.
Plaintiff Skout, Inc. ("Skout"), a California corporation which provides a free location-based platform for chatting with people online, alleges that Defendants are spammers who create fake Skout profiles to lure Skout users to websites owned by Defendants or their affiliates. Plaintiff sues for breach of contract, fraud, and violation of Business and Professions Code Section 17200. Plaintiff has attempted unsuccessfully to serve the named Defendants all of which are foreign corporations. Having been unable to serve the named Defendants thus far, Plaintiff seeks leave to conduct early discovery to identify Does 1-4 by serving subpoenas on non-party proxy registration services. After carefully considering the arguments and briefing submitted, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS the renewed motion for early discovery. (Dkt. No. 19.)
Skout is a free location-based web platform that allows registered users to meet and chat with other users. (Dkt. No. 1 ¶ 18.) Skout users send messages to each other through the Skout platform. ( Id. ¶ 19.) Plaintiff alleges that Defendants are spammers who have created fake Skout profiles, which they use to send fraudulent links to lure Skout's users onto their own websites, for their own commercial gain. ( Id. ¶ 1.) In particular, Defendants are alleged to use bots or other automated techniques to direct Skout users to pornographic websites owned by Defendants or their business affiliates. ( Id. ¶ 32.)
Defendants' spamming activity has negatively affected Skout users' experience, damaged the users' good will towards Skout, and caused some Skout users to terminate their accounts. ( Id. ¶ 25.) Skout has also lost prospective business relationships, and been forced to spend substantial amounts of money, time, and other resources, to combat the spam. ( Id. ¶ 25.)
The named defendants-Jen Processing, LTD, Infium, LTD, CityNet Line, V.A.N. Kereskedelmi es Szolgaltato Beteti Tarsasag, and Epiohost LTD-are all foreign corporations doing business in California. ( Id. ¶¶ 3-7.) Plaintiff has been unable to find valid physical addresses for any of these Defendants other than Defendant Jen Processing, LTD. (Dkt. No. 14 at 3.) Plaintiff is attempting to serve Defendant Jen Processing, LTD, a United Kingdom corporation, in accordance with the Hague Convention, but no appearance has yet been made on its behalf. (Dkt. No. 19-1 ¶ 2.)
Plaintiff alleges that Does 1-4 are companies or businesses doing business in the state of California who own and operate specified domain names (websites) used by the spammers. (Dkt. No. 1 ¶¶ 8-11.) However, Plaintiff alleges that Does 1-4 use proxy registration services to conceal their identities by having the proxy registration services replace the website owner's information in the public Whois directory with the proxy registration service's own information. (Dkt. No. 14 at 3:16-23.) Plaintiff contends that through a search of the publicly available Whois directory it discovered the following information regarding the proxy registration services used by Does 1-4. (Dkt. No. 14-1 ¶ 4.) Doe 1 owns and operates the domain xxxblackbook.com which uses Contact Privacy Inc. as its proxy registration service. ( Id. ) Doe 2 owns and operates the domain paydirtdollars.com and uses Domains By Proxy, LLC as its proxy registration service. ( Id. ) Doe 3 owns and operates the domains mywebcamcrush.com, webcamflushcrush.com, camflushcrush.com, blamcams.com, flirtyinvitations.com, sunnydollars.net, disrespectmybody.com, cambayHD.com, and nervoustv.com and uses Moniker Privacy Services as its proxy registration service. ( Id. ) Doe 4 owns and operates the domain cam555.com using Whoisguard Protected as its proxy registration service. ( Id. )
Plaintiff seeks leave to propound subpoenas pursuant to Federal Rule of Civil Procedure 45 on the non-party proxy registration services to discover the identities of Does 1-4. (Dkt. No. 19-2.) The Court previously denied Plaintiff's motion for leave to conduct early discovery to serve these subpoenas without prejudice to Plaintiff first attempting to obtain the information from the proxy registration services voluntarily. (Dkt. No. 15.) Plaintiff's attempted to do so; however, the proxy registration services for Doe 2 and Doe 4, Domains By Proxy, LLC and Whoisguard Protected, respectively, have public policies prohibiting the release of information about the owners of their domain sites in connection with a civil lawsuit without a subpoena. (Dkt. No. 19-1 ¶¶ 6-7.) Plaintiff's efforts to contact the proxy registration services, Contact Privacy and Moniker Privacy Services, for Doe 1 and Doe 3, respectively, were likewise unsuccessful. ( Id. at ¶¶ 8-9.) Plaintiff thereafter filed the now pending renewed motion for early discovery.
Federal Rule of Civil Procedure 26(d)(1) requires a court order for discovery if it is requested prior to a Rule 26(f) conference between the parties. Generally, a "good cause" standard applies to determine whether to permit such early discovery. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D.Cal. 2002). "Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice of the responding party." Id.
To determine whether there is "good cause" to permit expedited discovery to identify doe defendants, courts consider whether:
(1) the plaintiff can identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps taken to locate the elusive defendant; (3) the plaintiff's suit against defendant could withstand a motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.
OpenMind Solutions, Inc. v. Does 1-39, No. 11-3311, 2011 WL 4715200, at *2 (N.D. Cal. Oct.7, 2011) (citing Columbia Ins. Co. v. seescandy.com, ...