Uber Technologies, Inc. v. Doe I

Filing 51

Order (Redacted Version) by Magistrate Judge Laurel Beeler denying 24 Motion to Quash. The court denies the motion to quash and grants the Subscriber's request to file the motion as "Subscriber." The court stays its order until July 31, 2015 to allow Subscriber to file a notice of appeal and to move to stay the case pending appeal. This disposes of ECF Nos. 24 and 25-4.(Beeler, Laurel) (Filed on 7/20/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

Northern District of California

10

San Francisco Division
UBER TECHNOLOGIES, INC.,

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

No. 3:15-cv-00908-LB

Plaintiff,

ORDER DENYING MOTION TO
QUASH

v.
13
JOHN DOE I, an individual,

[ECF Nos. 24, 25-4]

14
15

Defendant.
_____________________________________/

16
17

INTRODUCTION
Plaintiff Uber Technologies, Inc. claims that defendant John Doe I breached its secure database,

18

stole information from that database, and thereby violated the federal Computer Fraud and Abuse

19

Act, 18 U.S.C. § 1030 et seq., and the California Comprehensive Computer Data Access and Fraud

20

Act, Cal. Penal Code § 502. (Compl. – ECF No. 1 at 2, ¶ 8.)1 Uber previously sought permission to

21

take expedited discovery from third parties GitHub, Inc. (ECF Nos. 4, 18) and Comcast Business

22

Communications, LLC. (ECF No.16.) Uber seeks to discover (among other things) the names,

23

physical addresses, email addresses, subscription-payment information, and Media Access Control

24

addresses associated with identified Internet Protocol (“IP”) addresses or domains that likely were

25

used to access Uber’s database. (The full subpoenas are at ECF No. 16-1 at 7 and ECF No. 18-1 at

26
27
1

28

Record citations are to documents in the Electronic Case File (“ECF”); pinpoint citations
are to the ECF-generated page numbers at the tops of the documents, except pinpoint citations to
Reporter’s Transcripts (“RT”) are to the transcript page and line numbers.
ORDER (No. 3:15-cv-00908-LB)

1

7.) The court previously granted Uber’s motions and ordered the discovery. (See 4/27/15 Order, ECF

2

No. 20.) The Comcast subscriber now moves to quash the subpoena to Comcast and to appear as

3

“Subscriber.” The court heard the matter on July 9, 2015. The court denies the motion to quash and

4

grants permission to the Comcast subscriber to appear as “Subscriber.”

5

* * *

6

STATEMENT

7

I. UBER AND ITS CONFIDENTIAL INFORMATION

8

Uber is a technology company that has developed a smartphone application that connects drivers

files with confidential details on the drivers who use its application. (Id. ¶ 6.) Uber closely guards

11

the contents of the internal database files. (Id. ¶ 7.) The database files can be accessed only by using

12
For the Northern District of California

and riders in cities all over the world. (Compl. - ECF No. 1, ¶ 5.) Uber maintains internal database

10

UNITED STATES DISTRICT COURT

9

a unique security key. (Id.) The security key “is not intended to be available to anyone other than

13

certain Uber employees, and no one outside of Uber is authorized to access the files.” (Id.)

14

The Uber security key was posted on Uber pages on the GitHub website that were publicly

15

accessible. (See Ex. A to Kollios Decl., ECF No. 24-2; Opposition, ECF No. 35-3 at 2.) GitHub is a

16

San Francisco-headquartered subscription Internet service where users (such as Uber software

17

engineers) collaborate in developing software. (3/12/15 RT, ECF No. 14, 5:16-20.)

18

II. UNAUTHORIZED ACCESS OF UBER’S DATABASE

19

On May 12, 2014, John Doe I used Uber’s security key to access and download Uber’s driver

20

database files from Uber’s protected computers. (Id. ¶¶ 8, 10, 11.) Uber alleges that John Doe I’s

21

unauthorized access harmed Uber and caused it to expend resources to investigate and to prevent

22

such access from occurring. (Id. ¶ 12.) As a result, Uber claims that its loss exceeds $5,000. (Id.)

23

Uber reviewed the IP addresses that accessed Uber’s protected computers on May 12 and

24

isolated one unrecognized IP address. (Garbutt Decl., ECF No. 4-2, ¶ 2.) Uber “could not identify

25

from that IP address who accessed the database” because it was an

IP address from

26

.

27

(Id.; Snell Decl., ECF No. 35-6, ¶ 2.) On May 12, 2014, the

28

posts on GitHub’s website “right before” the unauthorized access and download. (Garbutt Decl.,

ORDER (No. 3:15-cv-00908-LB)

2

IP address visited Uber

1

ECF No. 4-2, ¶ 3, identifying the pages by address; Snell Decl., ECF No. 35-6, ¶ 2.) (At the hearing,

2

Uber’s counsel said that the

3

data files, not the Uber page with the security key. (7/9/15 RT 13:13-18.))

4

There are

IP address visited the Uber page on GitHub with driver-

IP addresses that visited the relevant web GitHub webpages before

5

the May 12 download “that Uber has not identified as [either] associated with Uber users” or

6

otherwise explained (e.g., automated indexing by Google).” (Snell Decl., ECF No. 35-6, ¶ 2.)

7

Subscriber’s Comcast IP address visited the “subject GitHub webpage” on

8

the only IP address not identified by Uber that accessed the GitHub post [containing the security

9

key] after the date it was posted.” (Snell Decl., ECF No. 16-1, ¶ 4; Snell Decl., ECF No. 35-6, ¶ 2.)

10

and “is

At the July 9 hearing, Uber’s counsel confirmed the following. First, he confirmed that March
11, 2014 (the start of the time period in the subpoena) (see infra next section) was the date that the

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

security key was posted on the relevant GitHub page.2 (7/9/15 RT 4:20-5:3.) Second, the IP

13

addresses that visited the GitHub pages between March 11, 2014 and May 12, 2014 were (1) Uber

14

software engineers (see ECF No. 35-6, ¶ 2, describing the “Uber users”), or (2) at the beginning,

15

“bots.” (7/9/15 RT 9:22-11:5.) Bots are automatic web crawlers – software applications – that create

16

entries for search-engine indexes. (See ECF No. 35-6, ¶ 2, describing “automated indexing.”) Third,

17

he confirmed that Subscriber’s Comcast IP address “is the only IP address not identified with Uber

18

that accessed the post [containing the security key] after the date it was posted.” (Id.; 7/9/15 RT

19

4:20-5:3, 24:8-21.) Fourth, he explained that before Uber confirmed that the

20

visited the GitHub post right before the download, it assumed that John Doe I obtained the key from

21

the GitHub post because that was the way an outsider could get the key. (7/9/15 RT 8:18-25.)

IP address

22

At the hearing, Uber’s counsel proffered that Uber’s investigation revealed that the Subscriber’s

23

Comcast IP address “scraped Uber’s driver data” during the relevant time period (meaning, between

24

March 11, 2014 and May 12, 2014). (7/9/15 RT 14:24-16:2.) This proffer is not supported by a

25

declaration. The court mentions it only to make it explicit that the court does not consider it.

26
27
28

2

The inference is that Uber software engineers, who were using the GitHub site to
collaborate on code, did this “inadvertently.” (7/9/15 RT 8:18-21.)

ORDER (No. 3:15-cv-00908-LB)

3

1

III. THE COMCAST SUBPOENA

2

The court previously authorized service of a subpoena on Comcast to produce:

3

1. The name, address, telephone number, email address, Media Access Control addresses, and
any other identifying information for each subscriber assigned the Internet Protocol address
[REDACTED] (“Subscribers”) from March 11, 2014 until May 13, 2014.

4
5

2. Any logs or other information regarding Subscribers’ access to the following IP addresses or
domains between March 11, 2014 and May 13, 2014: (a)
; and (b) [REDACTED].

6
7
8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

3. Any logs or other information regarding Subscribers’ access to the following IP addresses or
domains on May 12, 2014 on or about 9:47 pm PDT: (a)
; and (b) [REDACTED].
4. The name, address, telephone number, email address, Media Access Control address, and any
other identifying information for any individual user or machine on Subscribers’ networks that
accessed
https://gist.githubusercontent.com/hhlin/9556255/raw/2a4fae0e6d443b29826096fe043409e2c30
5bb79/insurance fun.py, https://api.github.com/gists/9556255/ and/or
https://gist.github.com/hhlin/9556255 on or about
.
5. The Subscribers’ means and source of payment (including any credit card or bank account
number).

13
14

(Subpoena, ECF No. 17-3 at 1; 4/27/15 Order, ECF No. 20 at 3.) In authorizing the subpoena, the

15

court authorized disclosure under 47 U.S.C. § 551(c)(2)(B), which provides:

16

(c) Disclosure of personally identifiable information

17

....

18

(2) A cable operator may disclose such information if the disclosure is —

19

....

20

(B) . . . made pursuant to a court order authorizing such disclosure, if the subscriber is notified of
such order by the person to whom the order is directed.

21
22
23

47 U.S.C. § 551(c)(2)(B).
The order authorized disclosure to John Doe I, directed Comcast to notify John Doe I of the

24

subpoena, and set forth the procedures for John Doe I to file a motion to quash or modify the

25

subpoena. (4/27/15 Order, ECF No. 20 at 3-4, 8-9.)

26

IV. ADDITIONAL PROCEDURAL HISTORY

27
28

After receiving notice of the subpoena, Subscriber moved to quash it. (Motion, ECF No. 25, 254.) The court held a hearing on July 9, 2015. (Minute Order, ECF No. 42.)

ORDER (No. 3:15-cv-00908-LB)

4

1

ANALYSIS

2

A court may authorize early discovery before the Rule 26(f) conference for the parties’ and

3

witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the Ninth

4

Circuit generally consider whether a plaintiff has shown “good cause” for early discovery. See, e.g.,

5

IO Grp., Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010);

6

Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002); Tex.

7

Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at *2 (E.D. Cal.

8

June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz.

9

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

11

responding party.” Semitool, 208 F.R.D. at 276.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

10

In evaluating whether a plaintiff establishes good cause to learn the identity of Doe defendants

13

through early discovery, courts examine whether the plaintiff: (1) identifies the Doe defendant with

14

sufficient specificity that the court can determine that the defendant is a real person who can be sued

15

in federal court; (2) recounts the steps taken to locate and identify the defendant; (3) demonstrates

16

that the action can withstand a motion to dismiss; and (4) shows that the discovery is reasonably

17

likely to lead to identifying information that will permit service of process. Columbia Ins. Co. v.

18

seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted). “‘[W]here the identity

19

of alleged defendants [is not] known prior to the filing of a complaint[,] the plaintiff should be given

20

an opportunity through discovery to identify the unknown defendants, unless it is clear that

21

discovery would not uncover the identities, or that the complaint would be dismissed on other

22

grounds.’” Wakefield v. Thompson, 177 F.3d at 1160, 1163 (9th Cir. 1999) (quoting Gillespie v.

23

Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).

24

The court previously granted Uber’s motions to take early discovery from GitHub and Comcast

25

to identify John Doe I. (3/16/15 Order, ECF No. 11; 4/27/15 Order, ECF No. 20.) The court found

26

that Uber established good cause to engage in early discovery to identify John Doe I by showing the

27

following: (1) John Doe I is a real person who may be sued in federal court; (2) Uber attempted

28

unsuccessfully to identify John Doe I before filing this motion; (3) its claims against John Doe I

ORDER (No. 3:15-cv-00908-LB)

5

1

could withstand a motion to dismiss; and (4) there is a reasonable likelihood that the subpoena will

2

lead to information identifying John Doe I. (See 4/27/15 Order, ECF No. 20 at 2; 3/16/15 Order,

3

ECF No. 11.) The court incorporates by reference the factual and legal discussions in its prior

4

orders.

5

Subscriber challenges the court’s conclusions as follows: (I) Uber has not shown that the

6

subpoena will identify John Doe I; (II) a suit against Subscriber will not withstand a motion to

7

dismiss; (III) the subpoena impinges on Subscriber’s right to participate in online forums

8

anonymously; and (IV) the subpoena is overbroad. (Motion, ECF No. 24 at 3, 8, 10-11; Reply, ECF

9

No. 39-4 at 2-7.)

10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

* * *
I. REASONABLE LIKELIHOOD OF IDENTIFYING JOHN DOE
The first issue is whether Uber has demonstrated that the proposed subpoena seeks information

13

reasonably likely to lead to uncovering John Doe’s identity. (Motion, ECF No. 24 at 7.) The court

14

previously held that it has (3/16/15 Order, ECF No. 11 at 5) and affirms that holding now based on

15

the following facts. On May 12, 2014, John Doe I used an

16

download Uber’s driver data base. (Snell Decl., ECF No. 35-6, ¶ 2.) Right before that, the

17

IP address to

IP website visted Uber posts on GitHub. (Id.) Subscriber’s Comcast IP address visited

18

the GitHub page that contained the security key on

19

automated IP addresses identified by Uber (such as those affiliated with Uber software engineers and

20

bots that do automatic indexing), Subscriber’s Comcast IP address is the “only IP address . . . that

21

accessed the post [with the security key] after [March 11, 2014,] the date it was posted.” (Id.)

22

. (Id.) Besides authorized or

Subscriber nonetheless argues that there is no link between Subscriber and the download. (Reply,

23

ECF No. 39-4 at 2-3.) Subscriber argues that (1) Subscriber is only “one of

24

who visited the public GitHub posts before May 12,” (2) an “unknown number of Uber employees

25

[also] visited the posts,” (3) Uber did not explain adequately the basis for its belief that John Doe I

26

accessed the GitHub post before downloading the driver data on May 12, 2014, and (4) it is the

27
28

IP addresses

IP address that necessarily will reveal the bad actor, not the Comcast IP address.
(Reply, ECF No. 39-4 at 2-6.) These arguments are not persuasive. First, while

ORDER (No. 3:15-cv-00908-LB)

6

IP

1

addresses did visit the relevant GitHub pages, Subscriber’s Comcast IP address is the only IP

2

address (other than authorized or automated IP addresses) that accessed the post (on

3

after it was posted on March 11, 2014. (Snell Decl., ECF No. 35-6, ¶ 2.) Second, it is reasonable for

4

Uber to investigate and then eliminate as suspects its own software engineers (who are the Uber

5

employees who accessed the GitHub pages to code). After all, presumably the driver data is

6

information particularly valuable to a competitor or others outside the Uber organization.

7

Subscriber’s counsel suggested at the hearing that a disgruntled software engineer might take driver

8

data to get a new job with a competitor. The court does not think that Uber has to prove the lack of a

9

disgruntled software engineer to get Doe discovery under the operable legal standard. Third, in

)

and believes” that the person who downloaded the driver data on May 12 visited the GitHub

12
For the Northern District of California

support of its February 2015 request for discovery from GitHub, Uber did say that it “is informed

11
UNITED STATES DISTRICT COURT

10

websites. (Garbutt Decl., ECF No. 4-2, ¶ 3.) It was reasonable for Uber to conclude that John Doe I

13

obtained the key from the GitHub post (where it was publicly available from March 11, 2014 to May

14

12, 2014) because that was the (only) way an outsider could get the key. (See 7/9/15 RT 8:18-25.)

15

Moreover, the GitHub discovery rendered that conclusion more certain: it is now undisputed that the
IP address visited Uber posts on the GitHub pages right before it downloaded the

16
17

driver data. (Garbutt Decl., ECF No. 4-2, ¶ 3; Snell Decl., ECF No. 35-6, ¶ 2.) Fourth, it is

18

reasonable to conclude that John Doe I did not stumble across the GitHub post for the first time on

19

May 12. It seems plausible – especially because no one else except Uber engineers and bots (at the

20

beginning) visited the pages – that Subscriber visited GitHub on

21

visited it again on May 12, 2014 via the

22

IP address to download the driver data. Subscriber’s counsel at the hearing suggested that Uber must

23

subpoena

24

does not think that necessary for

IP address right before using the

but the court

. (Snell Decl., ECF No. 35-6, ¶ 2.)

25
26

and thereafter

Subscriber also argues that “anyone might have viewed the posts through the cached copies on

27

Google . . . .” (Reply, ECF No. 39-4 at 2-3.) Subscriber elaborates that Google’s indexing bot

28

downloads a copy of every page, so the “secret key that Uber published on GitHub was apparently

ORDER (No. 3:15-cv-00908-LB)

7

1

also available on Google’s servers.” (Id. at 3-4.) “Uber has not explained why it is so sure that John

2

Doe visited GitHub directly, rather than viewing the security key through Google’s ‘cached’

3

backups.” (Id. at 4.) There is no evidence that the security key was available in cached backups.3

4

That said, Subscriber’s suggestion that others “might” have seen information “apparently” available

5

does not detract from (1) the connection that Uber identifies between the GitHub visits and the

6

unauthorized access or (2) the court’s conclusion that Uber has shown that there is a reasonable

7

likelihood that the subpoena will lead to information identifying John Doe I.

8

Subscriber also asserts that Uber did not prove that the discovery is “very likely” to disclose his

if such discovery is ‘very likely’ to ‘disclose[] the identities of the “John Doe” defendants.’ Gillespie

11

v. Civiletti, 629 F.2d 637, 643 (9th Cir. 1980); Hard Drive Prods.[v. Does 1-90, No. 5:11-cv-03825-

12
For the Northern District of California

identity. He argues the following: “As the Ninth Circuit has stated, early discovery is only permitted

10

UNITED STATES DISTRICT COURT

9

HRL,] 2012 WL 1094653, at *2 [(N.D. Cal. Mar. 30, 2012)]. Uber admits that it cannot make such a

13

showing, merely stating that the Comcast Subpoena will ‘further Uber’s investigation.’” (Motion,

14

ECF No. 24 at 7.) In making this argument, Subscriber reads Gillespie out of context.

15

In Gillespie, a prisoner sued unnamed U.S. Marshals as Doe Defendants in claims regarding the

16

conditions of his confinement. 629 F.2d at 639. The trial court dismissed the complaint without

17

requiring replies to interrogatories for the names and addresses of the Marshals. Id. at 643. The

18

Ninth Circuit reversed, holding that the district court abused its discretion by not permitting the

19

discovery. Id. “The use of “John Doe” to identify a defendant is not favored.” Id. at 642. But when

20

the identity of a defendant cannot be known before the filing of a complaint, “the plaintiff should be

21

given an opportunity through discovery to identify the unknown defendants, unless it is clear that

22

discovery would not uncover the identities, or that the complaint would be dismissed on other

23

grounds.” Id. (citation omitted). In finding that the denial of discovery was an abuse of discretion,

24

the court noted that “[i]t was very likely that the answers to the interrogatories would have disclosed

25

the identities of the ‘John Doe’ defendants.” Id.

26
27
28

3

Uber proffered at the hearing that it found no evidence in its investigation that the security
key was available in cached backups. (7/9/15 RT 11:7-19.) This proffer is not supported by a
declaration, and the court does not rely on it.

ORDER (No. 3:15-cv-00908-LB)

8

1

Read in context, then, the conclusion that “it was very likely” that the discovery would lead to

2

identifying information is the support for reversing (for an abuse of discretion) the denial of

3

discovery. It does not change the standard for obtaining the discovery: the plaintiff should be given

4

an opportunity to identify unknown defendants unless it is clear that discovery would not uncover

5

the identities or the complaint would be dismissed on other grounds. Id.

6

Subscriber also argues that this is “‘merely the first step in what could prove to be an extensive,

7

expensive, and . . . highly intrusive discovery process.’” (Reply, ECF No. 39-4 at 5) (citing Boy

8

Racer, Inc. v. Does 1-52, No. 3:11-cv-02329-PSG, 2011 WL 7402999, at *2 (N.D. Cal. Sept. 13,

9

2011)). This argument is not a basis for denying discovery given that the Comcast IP address is the

10

only IP address that accessed the GitHub post that Uber has not eliminated as non-suspect.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13

* * *
II. THE CLAIMS WOULD WITHSTAND A MOTION TO DISMISS
The court previously held that Uber has pleaded the essential elements of the claims sufficient to

14

withstand a motion to dismiss. (3/16/15 Order, ECF No. 11 at 5.) Subscriber asserts that Uber’s

15

claim “against Subscriber” would not withstand a motion to dismiss, arguing that Uber must show

16

that “its clams against Subscriber, not John Doe [I], could withstand a motion to dismiss.”(Motion,

17

ECF No. 24 at 8 (emphasis in original).) Uber responds that it need show only that its claims would

18

survive a motion to dismiss against John Doe I and that the discovery is aimed at identifying John

19

Doe I. (Opposition, ECF No. 35-4 at 9.) Subscriber did not respond to this point in his reply.

20

Uber is correct. A “plaintiff must make some showing that an act giving rise to civil liability

21

actually occurred and that the discovery is aimed at revealing specific identifying features of the

22

person or entity who committed that act.” Columbia, 185 F.R.D at 579. Uber has done that.

23
24

* * *
III. RIGHT TO PARTICIPATE IN ONLINE FORUMS ANONYMOUSLY

25

Subscriber argues that the subpoena impinges on his right to participate in online forums

26

anonymously. (Motion, ECF No. 24 at 3; Reply, ECF No. 39-4 at 6 n.3.) The court addressed the

27

First Amendment in its earlier order, holding that the case was not about speech and instead is about

28

conduct that cannot have been legitimate under any scenario. (4/27/15 Order, ECF No. 20 at 4-7.) As

ORDER (No. 3:15-cv-00908-LB)

9

1

the court held in Columbia Ins.,“people are permitted to interact pseudonymously and anonymously

2

with each other so long as those acts are not in violation of the law.” 185 F.R.D. at 578.

3
4

* * *
IV. THE SUBPOENA IS NOT OVERBROAD

connection between Subscriber and the May 12 download. (Motion, ECF No. 24 at 10; Reply, ECF

7

No. 39-4 at 7.) It must, Subscriber argues, show that Subscriber accessed Uber’s database on his

8

own or via the

9

sufficient connection. The subpoena is not otherwise overbroad. It is tailored to the limited time

10

period relevant to this lawsuit: March 11, 2014 to May 12, 2014. It is targeted only at identifying

11

information that Uber has a right to discover: (1) Request 1 is for the name and other identifying

12
For the Northern District of California

Subscriber argues that the subpoena is overbroad because Uber has not identified a sufficient

6

UNITED STATES DISTRICT COURT

5

information for Subscriber; (2) Request 2 is for information connecting the Comcast IP address to

13

the

IP address; (3) Request 3 is for information connecting the Comcast IP address to

14

the

IP address around the time of the illegal download; (4) Request 4 is for

15

information about the access to the GitHub webpages on

16

payment information that can confirm Subscriber’s identity.

IP address. (Reply, ECF No. 39-4 at 7.) The court already found a

17

* * *

18

; and (5) Request 5 is for

V. REQUEST TO PROCEED AS “SUBSCRIBER”

19

Subscriber asks to proceed as “Subscriber” on grounds that include avoiding embarrassment and

20

reputational harm. (Motion, ECF No. 24 at 12.) Uber does not oppose the motion to file the motion

21

anonymously; it notes that the information that is revealed by the subpoena will not be anonymous

22

in (for example) a future court filing. (Opposition, ECF No. 35-4 at 13.)

23

Courts “allow parties to use pseudonyms in the ‘unusual case’ when nondisclosure of the party’s

24

identity is necessary to protect a person from harassment, injury, ridicule or personal

25

embarrassment.” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir.

26

2000). The court grants the motion to file the motion as “Subscriber” on this ground.
* * *

27
28

ORDER (No. 3:15-cv-00908-LB)

10

VI. STAY PENDING APPEAL
1

At the July 9, 2015 hearing, Subscriber asked the court to stay its order to allow an appeal.

2

A stay is not a matter of right, even if irreparable injury might otherwise result. Nken v. Holder,

3

556 U.S. 418, 433 (2009). “It is instead ‘an exercise of judicial discretion,’ and ‘[t]he propriety of its

4

issue is dependent upon the circumstances of the particular case.’” Id. (quoting in part Virginian Ry.

5

Co. v. United States, 272 U.S. 658, 672-73 (1926) and Hilton v. Braunskill, 481 U.S. 770, 777

6

(1986)). The party requesting a stay bears the burden of showing that the circumstances justify an

7

exercise of that discretion. Nken, 556 U.S. at 433-34.

8
9
10

The court stays its order until July 31, 2015 to allow Subscriber to file any notice of appeal and a
simultaneous motion to stay. If Subscriber appeals and moves to stay the case, the case will be
stayed until the court addresses the motion to stay.
* * *

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

CONCLUSION

13

The court denies the motion to quash and grants the Subscriber’s request to file the motion as

14

“Subscriber.” The court stays its order until July 31, 2015 to allow Subscriber to file a notice of

15

appeal and move to stay the case pending appeal. This disposes of ECF Nos. 24 and 25-4.

16
17

IT IS SO ORDERED.
Dated: July 20, 2015

18

_______________________________
LAUREL BEELER
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
28

ORDER (No. 3:15-cv-00908-LB)

11