Camargo v. Miltiadous

Filing 26

ORDER by Magistrate Judge Jacqueline Scott Corley denying 24 Third Motion for Early Expedited Discovery (ahm, COURT STAFF) (Filed on 11/6/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLA CAMARGO,

Case No. 14-cv-04490-JSC

Plaintiff,
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v.

ORDER RE: THIRD MOTION FOR
EARLY EXPEDITED DISCOVERY

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MILTON MILTIADOUS and DOES 1-10

Re: Dkt. No. 24

Defendants.

United States District Court
Northern District of California

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Plaintiff Carla Camargo, a California resident and citizen of Brazil, filed suit against

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Defendant Milton Miltiadous, an Australian citizen and resident of Tokyo, Japan, and Does 1-10,

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alleging claims for libel, invasion of privacy, and false light. Now pending before the Court is

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Plaintiff’s Third Motion for Expedited Early Discovery. (Dkt. No. 24.) Having considered

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Plaintiff’s arguments and the relevant authority, the Court DENIES the motion. This denial is

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without prejudice to renewal of the motion as to the subpoenas to Google Inc. (“Google”) and

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Yahoo Inc. (“Yahoo”) as discussed herein.

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BACKGROUND
The Court previously discussed the background of this action at length, see Dkt. No. 17,

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and thus will not repeat it here. In short, Plaintiff contends that Defendant Miltiadous and Does 1-

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10 are responsible for a number of defamatory statements that appeared about her in internet

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postings on the websites www.ripoffreport.com, www.scamexposure.com, www.flickr.com, and

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www.tumblr.com. ((Dkt. No. 1 at ¶¶ 2-3.)

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Plaintiff has not yet served Defendant Miltiadous, although she is attempting to do so

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through the Japanese Central Authority. (Dkt. No. 24-1 ¶ 2.) As Miltiadous has not been served,

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discovery has not yet commenced. Plaintiff nonetheless seeks discovery to identify Does 1-10,

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who are alleged to be the individuals who posted the defamatory statements that appeared

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regarding Plaintiff on the aforementioned websites.
In February 2015, Plaintiff filed an Ex Parte Application to Conduct Expedited Discovery

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seeking leave to take depositions and obtain documents from Xcentric Ventures, LLC

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(“Xcentric”), which owns and operates RipoffReport.com, and Yahoo, which owns tumblr.com

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and flickr.com, to obtain more information regarding the individuals who had registered the user

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names: Bob-TKY, milts03, and cm257, respectively, with the aforementioned websites.1 (Dkt.

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No. 11.) The Court denied the request without prejudice because Plaintiff had failed to

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demonstrate good cause for early discovery as she had not addressed why she had not served

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Miltiadous, or included sufficient information regarding the doe defendants for the Court to

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United States District Court
Northern District of California

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determine that they were individuals who could be sued in federal court. (Dkt. No. 12.) Plaintiff

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had also failed to include copies of the proposed subpoenas and was ordered to include them in

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any subsequent motions for early discovery.
In April 2015, Plaintiff filed her second motion for early discovery. (Dkt. No. 16.) The

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Court granted the motion concluding that Plaintiff had demonstrated good cause to conduct early

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discovery to identify the doe defendants who are alleged to be the individuals who created the user

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names Bob-TKY, milts03, and cm257, and who authored the defamatory posts at issue. (Dkt. No.

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17.) Plaintiff was thus granted leave to serve the attached subpoenas on Yahoo and Xcentric to

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obtain information regarding the individuals associated with these user names.
DISCUSSION

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Plaintiff’s third motion for early expedited discovery follows her receipt of information

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responsive to the Yahoo! and Xcentric subpoenas. (Dkt. No. 24.) Plaintiff now seeks leave to

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conduct further discovery to identify the users who created the RipoffReport and Flickr posts. To

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this end, Plaintiff seeks discovery regarding two categories of information (1) the email addresses

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associated with the aforementioned users, and (2) the IP addresses associated with the same users.

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In particular, Plaintiff seeks leave to serve subpoenas on Google and Yahoo to identify the

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These user names were associated with the allegedly defamatory statements.
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individuals associated with the email accounts registered as the users of the RipoffReport and

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Flickr posts ([e-mail] and [e-mail], respectively), as well subpoenas

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on the “IP hosts” referenced in the attached Declaration of Amy Sommer Anderson (Dkt. No. 24-

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1).
With respect to the first category, as with Plaintiff’s motion for early discovery regarding

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the user names associated with the RipoffReport and Flickr posts, Plaintiff has established good

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cause to obtain discovery regarding the email addresses associated with these user names. It is not

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clear, however, whether Yahoo has additional information regarding the email address

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[e-mail] beyond that which it already produced in response to Plaintiff’s

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subpoena. See Dkt. No. 24-3 at 6.2 Because Plaintiff has not identified what additional

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United States District Court
Northern District of California

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information she seeks from Yahoo regarding this email address and has again failed to include a

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copy of the proposed subpoenas, the motion is denied without prejudice as to the proposed

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subpoenas to Google and Yahoo.
As for Plaintiff’s second category of subpoenas, she has failed to offer a legal basis for her

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request for issuance of subpoenas to the foreign Internet Service Providers (“ISPs”) associated

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with these users. Federal Rule of Civil Procedure 45 governs discovery of nonparties by

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subpoena. The scope of discovery that can be requested through a subpoena under Rule 45 is the

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same as the scope under Rule 26(b). See Fed. R. Civ. P. 45 Advisory Comm.’s Note (1970)

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(“[T]he scope of discovery through a subpoena is the same as that applicable to Rule 34 and other

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discovery rules.”); Fed. R. Civ. P. 34(a) (“A party may serve on any other party a request within

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the scope of Rule 26(b).”). However, under Rule 45(b)(3), the Court lacks the power to issue

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subpoenas in foreign countries to persons other than nationals or residents of the United States.

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See Prime Media Grp., LLC v. Acer Am. Corp., No. 12-CV-05020-BLF, 2015 WL 307249, at *2

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(N.D. Cal. Jan. 21, 2015) (concluding that a Taiwanese citizen not present in the United States was

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beyond the subpoena power of this court citing Fed. R. Civ. P. 45(b)(2)-(3) and 28 U.S.C. § 1783).

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There is no suggestion here that that ISPs are United States corporations or otherwise fall within

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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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the scope of Rule 45(b)(3). Rather, they are German, British, and Japanese entities.3 (Dkt. No.

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24-1 at ¶¶ 7-8, 11-12.) Plaintiffs’ request to issue subpoenas to these foreign non-parties is thus

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denied.
CONCLUSION

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For the reasons stated above, Plaintiff’s third motion for early discovery is DENIED. This

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denial is without prejudice to Plaintiff renewing her request as to the subpoenas to Google and

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Yahoo if such a motion is accompanied by the proposed subpoenas and otherwise complies with

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this Order. Any such motion must be filed by November 16, 2015.
The previously scheduled Case Management Conference is continued to November 19,

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2015. If Plaintiff has not filed proof of service on Defendant Miltiadous by November 18, she

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United States District Court
Northern District of California

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shall file an updated statement explaining the delay and must provide more details other than that a

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law firm in Japan has been retained to assist with service.

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IT IS SO ORDERED.

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Dated: November 6, 2015

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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The Flickr subpoena identified the IP address 133.36.145.13 as associated with the user id
cm257. (Dkt. No. 24-3 at 5.3) According to WHOIS (the publicly available database for accessing
domain and IP registration), this IP address is associated with Takushoku University in Tokyo,
Japan. See http://whois.nic.ad.jp/cgi-bin/whois_gw?key=TT024JP/e (last visited Nov. 3, 2015).
Likewise, the IP address associated with the email [e-mail] is 122.208.205.202
(Dkt. No. 24-1at 6), which is associated with Bunkyo Gakuin Educational Institution, a university
in Tokyo, Japan. See http://whois.nic.ad.jp/cgi-bin/whois_gw (last visited Nov. 3, 2015).) For the
RipoffReport post, the account was created from the IP address 89.22.98.56 (Dkt. No. 24-2 at 3),
which is registered to a German company. See https://whois.arin.net/rest/net/NET-89-0-0-01/pft?s=89.22.98.56 (last visited Nov. 3, 2015);
https://apps.db.ripe.net/search/query.html?searchtext=89.22.98.56#resultsAnchor (last visited
Nov. 3, 2015). Finally, the “report” on RipoffReport was created from the IP address
46.37.160.114 (Dkt. No. 24-2 at 3), which appears to be associated with a British company. See
https://whois.arin.net/rest/net/NET-46-0-0-0-0/pft?s=46.37.160.114 (last visited Nov. 3, 2015);
https://apps.db.ripe.net/search/query.html?searchtext=46.37.160.114#resultsAnchor (last visited
Nov. 3, 2015).
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