Veolia Transportation Services, Inc. v Unknown Parties

Filing 39

ORDER that Pla's 31 Second Motion to Conduct Accelerated and Expedited Pre-Service Discovery is granted to the extent that Veolia may engage in accelerated and expedited pre-service discovery as set forth in this order, for the sole and limite d purpose of identifying the Doe Defendants. IT IS FURTHER ORDERED that Plaintiffs discovery of Mr. Bean, Qwest, and the ATU is to be conducted by a third-party expert. Signed by Judge James A Teilborg on 12/13/10. (NOTE: see attached pdf for complete details) (ESL)

Veolia Transportation Services, Inc. v Unknown Parties

Doc. 39

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Veolia Transportation Services, Inc., Plaintiff, vs. John Does I-VII, Defendants.

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No. CV-10-01392-PHX-NVW ORDER

Before the Court is Plaintiff Veolia Transportation Services, Inc.'s ("Veolia") Second Motion to Conduct Accelerated and Expedited Pre-Service Discovery1 (Doc. 31), Robert J. Bean's Response to Plaintiff's Second Motion to Conduct Accelerated and Expedited PreService Discovery (Doc. 33), and Plaintiff's Reply in Support of Second Motion to Conduct Accelerated and Expedited Pre-Service Discovery and Motion to Compel (Doc. 36). I. Background The Court granted Veolia leave on July 13, 2010, to conduct pre-service discovery of third-party email providers Google, Yahoo, and Microsoft for the sole purpose of ascertaining the identities of the proper John Doe defendants to this litigation. (Doc. 9.) Under purported authority of the July 13 order, Veolia also subpoenaed Mr. Robert Bean, a
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Plaintiff's motion also requested the Court vacate its October 25, 2010 order that this action be dismissed unless Plaintiff complied with Fed. R. Civ. P. 4; that request has already been addressed by the Court's November 5, 2010 order. (Doc. 32.)

Dockets.Justia.com

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non-party, on September 1, 2010. Mr. Bean moved for a protective order pursuant to Fed. R. Civ. P. 26(c) and for an order quashing the Subpoena Duces Tecum pursuant to Rule 45(b)(3)(A)(iv) on the basis that the Court's July 13 order was limited to the third-party email providers identified in the motion. (Doc. 16.) The Court heard oral argument on Mr. Bean's motion on October 6, 2010, and concluded that its July 13 order did not authorize Veolia to subpoena Mr. Bean because the requested discovery was specifically limited to subpoenas of the anonymous emailer's email providers. The Court accordingly issued an order granting Mr. Bean's protective motion (Doc. 28.) However, recognizing that Mr. Bean had been afforded fair notice and process by the briefing and oral argument, the Court granted Veolia's request to amend the Court's July 13 order to permit limited discovery against Mr. Bean for the sole purpose of identifying the anonymous emailers. (Doc. 28.) Veolia deposed Mr. Bean on October 14, 2010. (Doc. 312.) Veolia then filed this second motion for pre-service discovery, seeking discovery from other targets it has identified as likely having knowledge relating to the anonymous Defendants' identity, as well as additional discovery from Mr. Bean. (Doc. 31.) Mr. Bean filed a response objecting to Veolia's request for discovery and requesting that if additional discovery is authorized as to Mr. Bean, Qwest, and the Amalgamated Transit Union ("ATU"), it be conducted by a third-party expert reviewer and subject to other safeguards. (Doc. 33.) In its reply to Mr. Bean's response, Veolia specified its discovery request and agreed to have a third-party expert conduct the additional discovery of Mr. Bean and the ATU. II. Discovery Requests In its current motion for pre-service discovery, Plaintiff requests permission to conduct discovery of the following targets for the sole purpose of determining the identities of the proper parties to this action: 1) Hotels and other locations, in Arizona and Atlanta, providing free internet access and used by the Doe Defendants to access the anonymous e-mail accounts. 2) Google, Microsoft and Yahoo, where the Doe Defendants registered the anonymous accounts, to the extent supplemental information is needed. -2-

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3) ISPs providing service used by the Doe Defendants to access the anonymous email accounts. 4) Qwest, regarding correspondence Veolia knows or has information to believe was sent from, to or between Mr. Bean, Ms. Evanson and/or the Doe Defendants. 5) Hard drives, computers and servers Veolia has information to believe may contain information responsive to the subpoena to Mr. Bean and/or likely to lead to the identification of the Doe Defendants. 6) Terri McGraw, to testify and produce documents, based on Mr. Bean's testimony at his deposition identifying her as a witness. Veolia has shown good cause to conduct the requested limited pre-service discovery for the sole purpose of identifying the Doe Defendants. Where the identity of alleged defendants will not be 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." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Veolia has explained its efforts to ascertain the identities of the Doe Defendants, which have been unsuccessful. The Court will therefore exercise its discretion to allow Veolia to conduct limited pre-service discovery and to excuse Veolia from the meet and confer requirements of Rule 26(d) and Rule 26(f) for the sole purpose of ascertaining the identities of the Doe Defendants. Veolia has agreed in its reply brief to have an independent third-party expert conduct the additional discovery of Mr. Bean and the ATU. The Court finds that the discovery requested of Mr. Bean, Qwest, and the ATU shall be conducted by a third-party expert. In the event the parties cannot agree to the terms of the third party expert's review, the parties shall submit to the Court alternative proposed forms of order outlining the proposed discovery terms, and the Court will choose one of the proposed forms. IT IS THEREFORE ORDERED that Plaintiff's Second Motion to Conduct Accelerated and Expedited Pre-Service Discovery (Doc. 31) is granted to the extent that Veolia may engage in accelerated and expedited pre-service discovery as set forth below, for the sole and limited purpose of identifying the Doe Defendants. Specifically, Veolia is hereby excused from the meet and confer requirement of Rules 26(d) and 26(f) of the Federal -3-

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Rules of Civil Procedure, and is permitted to conduct limited discovery of the following targets for the sole purpose of identifying the Doe Defendants: 1) Hotels and other locations, in Arizona and Atlanta, providing free internet access and used by the Doe Defendants to access the anonymous e-mail accounts. 2) Google, Microsoft and Yahoo, where the Doe Defendants registered the anonymous accounts, to the extent supplemental information is needed. 3) ISPs providing service used by the Doe Defendants to access the anonymous email accounts. 4) Qwest, regarding correspondence sent from, to or between Mr. Bean, Ms. Evanson and/or the Doe Defendants, for the sole purpose of identifying the Doe Defendants. 5) Mr. Bean's and the ATU's hard drives, computers and servers that may contain information likely to lead to the identification of the Doe Defendants. 6) Terri McGraw, to testify and produce documents relating to the identification of the Doe Defendants, based on Mr. Bean's testimony at his deposition identifying her as a witness. IT IS FURTHER ORDERED that Plaintiff's discovery of Mr. Bean, Qwest, and the ATU is to be conducted by a third-party expert. In the event the parties cannot agree on the terms of the third-party expert's review, they shall submit alternative proposed forms of order outlining the proposed discovery terms from which the Court may choose. DATED this 13th day of December, 2010.

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