United States District Court, N.D. California, San Francisco Division
ORDER GRANTING PLAINTIFF'S MOTION FOR EXPEDITED
DISCOVERY RE: ECF NO. 13
BEELER United States Magistrate Judge.
owns copyrights and trademarks for its
software. It alleges that Chris Gorsline, Lindsay
Duvanski, the entity wxonline, and Does 1-10 sold counterfeit
and unauthorized software using eBay, PayPal, Bonanza, and
other online services. Adobe has been unable to discover the true
identities of the defendants. It seeks to obtain limited
discovery from the third-party providers used to sell the
counterfeit software sufficient to identify the
defendants. Because Adobe demonstrates good cause for
the discovery, the court grants the motion.
develops and distributes its copyrighted software using
trademarks, such as its “Adobe” and
“Acrobat” marks. The defendants used online
platforms, such as eBay, to sell counterfeit and unauthorized
versions of Adobe's software without its
permission. The defendants used fake receipts to
obtain replacement serial numbers that they then affixed to
their counterfeit software.The defendants also gave Adobe
false contact information to become authorized resellers in
an effort to appear legitimate when selling their counterfeit
software. Adobe asserts claims against the
defendants for trademark infringement, trademark dilution,
false designation of origin, copyright infringement, and
determined the defendants sold infringing software using the
seller IDs voodoo1337, robyne26, and stormlabs, to name a
The defendants processed payments through PayPal using email
addresses including email@example.com and
also used the websites integritysystembuilders.com,
3dfxgraphics.com, and graphicstechnica.com, which they
registered through Domains by Proxy, LLC to mask their
identities. The defendants obscured their physical
location by shipping counterfeit software through the
shipping service Shipito, LLC.
moves for expedited discovery. It asks the court for
permission to serve eBay, PayPal, Bonzanza.com, Domains by
Proxy, and Shipito with subpoenas for the production of
“documents sufficient to conclusively identify and
locate the defendants doing business under” the seller
IDs and aliases it identified.
may authorize expedited discovery before the Rule 26(f)
conference for the parties' and witnesses'
convenience and in the interest of justice. Fed.R.Civ.P.
26(d). Courts within the Ninth Circuit generally consider
whether a plaintiff has shown “good cause” for
early discovery. See, e.g., IO Grp., Inc. v.
Does 1-65, No. 10-CV-4377-SC, 2010 WL 4055667, at *2
(N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo
Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal.
2002); Tex. Guaranteed Student Loan Corp. v.
Dhindsa, No. 10-CV-0035, 2010 WL 2353520, at *2 (E.D.
Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire
Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz.
2001) (collecting cases and standards). “Good cause may
be found where the need for expedited discovery, in
consideration of the administration of justice, outweighs the
prejudice to the responding party.” Semitool,
208 F.R.D. at 276.
evaluating whether a plaintiff establishes good cause to
learn the identity of a defendant through expedited
discovery, courts examine whether the plaintiff: (1)
identifies the defendant with sufficient specificity that the
court can determine that the defendant is a real person who
can be sued in federal court; (2) recounts the steps taken to
locate and identify the defendant; (3) demonstrates that the
action can withstand a motion to dismiss; and (4) shows that
the discovery is reasonably likely to lead to identifying
information that will permit service of process. Columbia
Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D.
Cal. 1999) (internal citations omitted).
“‘[W]here the identity of alleged defendants [is
not] known prior to the filing of a complaint[, ] the
plaintiff should be given an opportunity through discovery to
identify the unknown defendants, unless it is clear that
discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds.'”
Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (quoting Gillespie v. Civiletti, 629 F.2d 637,
642 (9th Cir. 1980)).
has made a sufficient showing under each of the four
seescandy.com factors listed above to establish good
Adobe identifies the defendants with sufficient specificity
that the court can determine that they are real people who
can be sued in federal court. Adobe's investigators
purchased counterfeit software from the defendants,
identified online aliases they used to sell the software, and
even corresponded with the defendants via
Adobe recounts the steps taken to locate and identify the
defendants. Adobe identified email addresses the defendants
used in connection with eBay and PayPal. The
defendants refused to provide their contact information when
Adobe corresponded with them via email.Adobe also
attempted to locate the defendants through a fax number they
used and the address from which they shipped the counterfeit
software. In response, Adobe “was contacted
by a woman who claimed that her elderly father's identity
had been stolen and was being used in connection with the
eBay account ‘stormlabs.'” The
defendants used stolen identifying information and
third-party services, such as Domains by Proxy, to mask their
identities. Adobe attempted to use the (presumably
false) identifying information ...