United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART EX PARTE
APPLICATION FOR LEAVE TO TAKE LIMITED IMMEDIATE DISCOVERY Re:
Dkt. No. 11
R. LLOYD UNITED STATES MAGISTRATE JUDGE
Yahoo! Inc. (“Yahoo”) sues 510 Doe Defendants
(“Defendants”) for trademark infringement and
other related claims. Yahoo alleges Defendants use false
advertising to present themselves as Yahoo tech-support
employees who can be reached through certain toll-free phone
numbers and that, when called, Defendants
“scam” Yahoo customers by “demand[ing]
compensation and . . . confidential information” as the
price for tech-support services. Dkt. No. 1 at 5-7.
moves the court for leave to conduct limited early
discovery-service of “a Rule 45 subpoena on seven
nonparty toll-free service providers”-in order to
identify the subscribers who “operat[e]” 51
toll-free numbers. Dkt. No. 11 at 3. The court, for the
reasons discussed below, grants the motion as to one phone
number and denies the motion as to the others.
ordinarily may not take place when the plaintiff has not yet
served any defendant, but a district court has discretion to
permit limited early discovery for good cause shown.
E.g., Apple Inc. v. Samsung Electronics Co.,
Ltd., 5:11-cv-01846, 2011 WL 1938154, at *1 (N.D. Cal.
May 18, 2011). “[I]n rare cases, courts have . . .
permit[ed] limited discovery . . . to permit the plaintiff to
learn the identifying facts necessary to permit service on
the defendant.” Columbia Ins. Co. v.
seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). A
district court should permit “an opportunity through
discovery to identify . . . unknown defendants, unless it is
clear that discovery would not uncover the identities or
that the complaint would be dismissed on other
grounds.” Gillespie v. Civiletti, 629 F.2d
637, 642 (9th Cir. 1980).
undersigned is satisfied the discovery requested by Yahoo is
reasonably likely to uncover Defendants’ identities.
Attorney Tom Wyrwich declares: (1) he has investigated the
identities of Defendants, Dkt. No. 14 at 1-2; (2) he learned
that SOMOS, Inc. (“SOMOS”) “administers the
assignment of toll-free” phone numbers in North
America, Dkt. No. 14 at 2; (3) SOMOS “identified”
seven specific companies which provide service for 51
specific toll-free numbers used by Defendants, Dkt. No. 14 at
2-4; and (4) those companies refuse to provide information
about their subscribers unless Yahoo serves them with
subpoenas, Dkt. No. 14 at 2-4. And Andrew Yolevich
(“Yolevich”), an investigator employed by Yahoo
since 2010, specifically describes the information and the
experiences which lead him to believe that each of the 51
toll-free numbers is being used by “fake customer care
companies [that] seek to convince users that they represent
or are affiliated with Yahoo” in order to defraud
Yahoo’s customers. Dkt. No. 12 at 2-10. These
declarations persuade the undersigned that the subscribers to
the toll-free numbers are likely to be, or else to possess
information about, Defendants.
undersigned is not satisfied the requested discovery should
be permitted, however, because the undersigned currently
believes most of Defendants should be dismissed for
misjoinder. Federal Rule of Civil Procedure
(“FRCP”) 20 permits joinder of several defendants
in a single case “where the claims against them arise
from a single transaction or a series of closely related
transactions.” Diabolic Video Productions, Inc. v.
Does 1-2099, Case No. 10-cv-5865-PSG, 2011 WL 3100404,
at *3 (N.D. Cal. May 31, 2011). Misjoinder “is not a
ground for dismissing” an entire case, but a court may,
“on just terms, . . . drop a party” to cure
misjoinder. Fed.R.Civ.P. 21. A district court therefore has
the authority to sever and dismiss defendants to cure
misjoinder. See, e.g., Diabolic Video
Productions, Inc., 2011 WL 3100404, at *4 (severing
“Does 2 through 2099” and recommending that the
claims against those defendants be “dismissed without
prejudice” upon reassignment to a district judge);
IO Group, Inc. v. Does 1-435, Case No.
10-cv-04382-SI, 2011 WL 1219290, at *2 (N.D. Cal. Jan. 10,
2011) (severing and dismissing “Does 2 through
435” with leave to file new cases against them
individually); OpenMind Solutions, Inc. v. Does
1-39, Case No. 11-cv-3311-MEJ, 2011 WL 3740714 (N.D.
Cal. Aug. 23, 2011); Patrick Collins, Inc. v. John Does 1
through 38, Case No. 12-cv-01451-KJN, 2012 WL 2681828
(E.D. Cal. July 6, 2012). Yolevich describes “fake
customer care companies” as one of several recurring
problems which Yahoo addresses by employing an
“E-Crimes Investigations Team[.]” Dkt. No. 12 at
1-2. This suggests that likeminded scammers have developed an
identifiable genre of Yahoo-customer-care scams over time,
but it does not suggest that all scammers who pose as
Yahoo-customer-care agents are likely to be working together.
The undersigned therefore doubts that the claims against the
510 Does in this case arise either from a single transaction
or from a series of closely related transactions.
does assert, at least, that “many” of the 51
toll-free numbers are likely to be operated by a single party
or by “related parties” because: (1) the online
“advertising” for the numbers is “similar
in wording or appearance”; (2) several of the numbers
use “similar” prerecorded “greetings . .
. and hold music” and (3) the “representatives
who answer the phone” behave similarly. Dkt. No. 12 at
10. The undersigned is not persuaded, however, by the facts
currently before the court. Yolevich’s declaration has
39 attached exhibits which contain images of online
advertisements for 39 of the phone numbers, Dkt. No. 12 at
3-9, but Yolevich appears to lack evidence that the other 12
numbers have been advertised online, see Dkt. No. 12
at 9-10. It seems likely that the online advertisements
submitted to the court have been authored by a multitude of
people with varying degrees of English-language proficiency.
See, e.g., Dkt. No. 12-1 at 2
(“Welcome To Contact Yahoo Technical Support”);
Dkt. No. 12-2 at 2 (“Fix Yahoo Spam & Password
Issues”); Dkt. No. 12-4 at 2 (“95% Customer
Support Satisfaction Rating”); Dkt. No. 13-19 at 2
(“FOR YOUR HAPPY LIFE, WE ARE HERE”). Yolevich
also reports a wide variety of greetings, misrepresentations,
and illicit requests for compensation which he heard when he
called the different phone numbers. Dkt. No. 12 at 3-10. And
although the same pre-recorded “Koobface
Greeting” is used for 8 of the numbers, Dkt. No. 12 at
4-5, 7-9, there is no suggestion that any pre-recorded
greetings are used for the other 43 numbers and there is no
suggestion that “hold” music is used at all, Dkt.
No. 12 at 3-10.
undersigned is therefore presently convinced that Yahoo has
improperly joined a disparate set of defendants who allegedly
committed similar wrongs, but who do not seem to have
committed those wrongs in a closely related series of
transactions. See, e.g., Diabolic Video Productions,
Inc., 2011 WL 3100404, at *3 (use of the same
“peer-to-peer network” to infringe the same
copyright failed to show joinder was permissible under FRCP
20). The apparent misjoinder means that early discovery would
be inappropriate at to most of Defendants, e.g., id
(applying Gillespie, 629 F.2d at 642), and so the
undersigned grants the motion for leave to take limited
immediate discovery only with respect to the first ten
Does-the Does associated with phone number 1-800-385-4304.
Dkt. No. 1 at 8. The motion is otherwise denied. Yahoo may
file, no later than June 20, 2016, a proposed subpoena which
seeks identifying information and contact information for the
RingCentral, Inc. subscriber who operates that number. Dkt.
No. 14 at 2.
undersigned notes: (1) this order is based on the appearance
of misjoinder, and does not purport to rule on whether
misjoinder has actually occurred; and (2) the presiding
district judge has authority to rule directly on the issue of
misjoinder and to “modif[y]” the scope of this
discovery order in accord with any such ruling, see IO
Group, Inc., 2011 WL 1219290, at *2 (modifying a prior
discovery order which became “overbroad” upon a
finding of misjoinder).
motion for leave to conduct limited early discovery is
granted in part and denied in part due to the appearance of
misjoinder. Yahoo may file, no later than June 20, 2016, a
proposed subpoena which seeks identifying information and
contact information ...