Facebook, Inc. v. Various, Inc. et al

Filing 16

MOTION to Expedite Discovery and Entry of Proposed Protective Order, filed by Facebook, Inc.. (Attachments: # 1 Proposed Order re Motion for Expedited Discovery)(Norberg, Jeffrey) (Filed on 5/12/2011) Modified on 5/13/2011 (jlm, COURT STAFF).

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COOLEY LLP
MICHAEL G. RHODES (SBN 116127) ([e-mail])
GAVIN L. CHARLSTON (SBN 253899)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]
ANNE H. PECK (SBN 124790) ([e-mail])
JEFFREY T. NORBERG (SBN 215087) ([e-mail])
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone:
[phone]
Facsimile:
[phone]
Attorneys For Plaintiff
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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FACEBOOK, INC.,

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Case No. 4:11-cv-01805-SBA

Plaintiff,
v.
VARIOUS, INC.; GMCI INTERNET
OPERATIONS, INC.; TRAFFIC CAT, INC.;
FRIENDFINDER NETWORKS INC.; and
DOES 1-100,
Defendants.

FACEBOOK’S NOTICE OF MOTION,
MOTION AND MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF ITS MOTION FOR
EXPEDITED DISCOVERY AND
ENTRY OF PROPOSED PROTECTIVE
ORDER
Date:
Time:
Courtroom:
Judge:

TBD
TBD
1, 4th Floor
Hon. Saundra Brown Armstrong

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ATTORNEYS AT LAW
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FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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Table of Contents

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Page

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Notice of Motion and Motion ......................................................................................................... 1

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Memorandum in Support of Motion................................................................................................1

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I.

Introduction ......................................................................................................................... 1

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II.

Statement of Facts ............................................................................................................... 1

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III.

Requested Expedited Discovery ......................................................................................... 3
IV.

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There Is Good Cause To Permit Plaintiff To Immediately Serve The Requested

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Discovery ............................................................................................................................ 4
A.
Good Cause For Expedited Discovery Exists Because the Identity of the
Doe Defendants Cannot be Known Without Additional Discovery From
Named Defendants .................................................................................................. 5

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B.

Good Cause Exists Because Expedited Discovery Will Help Plaintiff
Establish A More Complete Record In Support Of Its Anticipated
Preliminary Injunction Motion................................................................................ 6

C.

Defendants Will Not be Unduly Prejudiced by Facebook’s Discovery
Requests .................................................................................................................. 7

D.

Named Defendants’ Changes to the Face Book Of Sex Website Do Not
Render Early Discovery Unnecessary..................................................................... 8

E.

Facebook Has Satisfied Its Meet and Confer Obligation........................................ 9

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V.

Conclusion ........................................................................................................................ 10

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i.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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TABLE OF AUTHORITIES

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Page(s)

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CASES

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Am. Legalnet Inc. v. Davis,
673 F. Supp. 2d 1063 (C.D. Cal. 2009)..................................................................................... 7

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Arista Records, LLC v. Does 1-12,
No. 1:08-cv-1242–OWW–GSA, 2008 WL 4133874 (E.D. Cal. Sept. 4, 2008) ....................... 5
Edudata Corp. v. Scientific Computers, Inc.,
599 F. Supp. 1084 (D. Minn. 1984) .......................................................................................... 6
Ellsworth Assocs., Inc. v. United States,
917 F. Supp. 841 (D.D.C. 1996) ............................................................................................... 6
Gillespie v. Civiletti,
629 F.2d 637 (9th Cir. 1980)................................................................................................. 4, 5
In re Countrywide Fin. Corp. Derivative Litig.,
542 F. Supp. 2d 1160 (C.D. Cal. 2008)..................................................................................... 4
Pod-Ners, LLC v. N. Feed & Bean of Lucerne, LLC,
204 F.R.D. 675 (D. Colo. 2002)................................................................................................ 5
Polo Fashions, Inc. v. Dick Bruhn, Inc.,
793 F.2d 1132 (9th Cir. 1986)................................................................................................... 9
Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc.,
213 F.R.D. 418 (D. Colo. 2003)................................................................................................ 5
Semitool, Inc. v. Tokyo Electron Am., Inc.,
208 F.R.D. 273 (N.D. Cal. 2002) .......................................................................................... 4, 7

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UMG Recordings, Inc. v. Doe,
No. C 08-1193 SBA, 2008 WL 4104214 (N.D. Cal. Sept. 3, 2008)......................................... 5

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OTHER AUTHORITIES

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Federal Rules of Civil Procedure 26(d)(1)...................................................................................... 1

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Federal Rule of Civil Procedure 26(f)............................................................................................. 4
Federal Rule of Evidence 408 ......................................................................................................... 9

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ATTORNEYS AT LAW
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ii.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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NOTICE OF MOTION AND MOTION

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Please take notice that on ________ at ___ p.m. or as soon thereafter as the matter may be

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heard in Courtroom 1 located at Fourth Floor, 1301 Clay Street, Oakland, California, before

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Honorable Saundra Brown Armstrong, Plaintiff Facebook, Inc. (“Facebook”), hereby moves this

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Court for an order for expedited discovery pursuant to Federal Rules of Civil Procedure 26(d)(1).

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This Motion is supported by the following argument, the Declaration of Jeffrey T. Norberg in

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Support of Facebook’s Motion for Expedited Discovery and Entry of Proposed Protective Order

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(“Norberg Decl.”), and Facebook’s Motion to Shorten Time, filed concurrently herewith.

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MEMORANDUM IN SUPPORT OF MOTION
I.

INTRODUCTION

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Plaintiff Facebook Inc., (“Facebook”) seeks limited expedited discovery from Defendants

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Various Inc., GMCI Internet Operations, Inc., Traffic Cat, Inc., and Friendfinder Networks, Inc.,

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(“Named Defendants”) for the purpose of identifying and serving Does 1-100 (the “Doe

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Defendants”), and facilitating a motion for preliminary injunction. As explained in greater detail

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in Facebook’s Complaint, the Named Defendants run a pornography-focused social networking

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website that infringes the FACEBOOK brand: www.facebookofsex.com. The Doe Defendants

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are part of a network of affiliates who are paid or otherwise caused by Defendants to use

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infringing marks and domains to drive traffic to the Named Defendants’ websites. This motion

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presents a classic case of good cause to allow expedited discovery because: 1) Facebook is

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unaware of the identities and/or contact information for the Doe Defendants; 2) Plaintiff intends

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to file a motion for preliminary injunction, and expedited discovery is necessary to present a

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complete record and to ensure that all defendants can be served with the Complaint and bound by

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the anticipated preliminary injunction; and 3) Named Defendants would not be unduly prejudiced

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by Facebook’s request.

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II.

STATEMENT OF FACTS

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Facebook offers the most popular and widely used social networking website in the world.

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Named Defendants operate an adult social networking website branded and promoted as

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ATTORNEYS AT LAW
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1.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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“Face Book of Sex.” As alleged in the Complaint, the FACE BOOK OF SEX mark is nothing

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more than an attempt by Defendants to hijack Facebook’s fame for illicit financial gain.

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Defendants’ Face Book of Sex site, however, is just one part of their larger scheme to

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misappropriate the Facebook brand. Defendants also operate a widespread infringing affiliate

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network that pays, and provides infringing promotional materials to, third party website operators

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(the Doe Defendants). See, generally, Complaint (D.I. 1), Ex. D. The Defendants’ affiliate

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program marketing materials encourage affiliates to “be a part of the crowd cashing in on this

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new and exciting cobrand” and share in the profits generated by the Defendants’ infringement of

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the Facebook brand: “[w]ith millions of Adult FriendFinder members worldwide, as well as a

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highly recognizable name, you’ll generate great income on facebookofsex.com!” Id. (emphasis

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added). These marketing materials provide Doe Defendants specific instructions on how to

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implement tools to redirect traffic to the FACE BOOK OF SEX site. Doe Defendants use these

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tools to generate web traffic and revenue for Named Defendants’ websites, and are paid by the

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Named Defendants based upon the volume of traffic they generate. Id.

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In October of 2010, Facebook contacted the site’s operator, Defendant Various Inc.

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(“Various”) and requested that Various disable the site and cease using the FACEBOOK

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trademark. Complaint (D.I. 1), Ex. G. Various refused, and Facebook began an investigation of

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Various, Inc., the www.facebookofsex.com site, and several other similar domains that used the

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Facebook brand and redirected to the www.facebookofsex.com site.

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revealed more than 100 domain names that appear to participate in the FACE BOOK OF SEX

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affiliate program. Norberg Decl. ¶2 & Ex. A. Absent discovery, however, Facebook was unable

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to learn the true identities of the owners of all of the infringing affiliates – many of the domain

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names were registered in the anonymous name of Domains by Proxy, and other listed owners

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appeared to be false identities. See, e.g., Norberg Decl. ¶¶4-7 & Exs. B-E. After a final effort to

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resolve the issue directly with the Named Defendants failed to produce a timely end to the

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infringing activities, Facebook filed this Action, naming the affiliates as Does 1-100 until

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discovery can determine their true identities.

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This investigation has

After filing the Complaint, Facebook continued its effort to resolve this matter via
2.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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settlement discussions. Norberg Decl. ¶¶13-15. These discussions, however, did not resolve the

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parties’ dispute. The Named Defendants’ continue to use the FACEBOOK trademark in the

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www.facebookofsex.com domain name, which ultimately directs users to one of Named

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Defendants’ other websites: www.xmatch.com (Caution – Adult Content).

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Defendants continue

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www.facebooksextubes.com (Caution – Adult Content), and/or by displaying the Named

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Defendants’ banners or other advertisements on infringing domains, such as www.face-book-of-

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sex.com (Caution – Adult Content), which includes an advertisement that directs traffic to

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www.GetItOn.com, a Various site. Norberg Decl. ¶¶6-7 & Exs. D-E.

to

use the FACEBOOK

Mark in

numerous

And the Doe
sites,

such as

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Given the unambiguous nature of the defendants’ direct, vicarious and contributory

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infringement and the ongoing irreparable harm to the Facebook brand, Facebook intends to bring

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a motion for preliminary injunction as soon as practicable. Because any such motion will seek to

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bar both the Named Defendants and the Doe Defendants from using Facebook’s trademark during

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the pendency of this suit, Facebook seeks expedited discovery to allow Facebook to determine,

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from the Named Defendants and limited third-parties, the true identities of the Doe Defendants,

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details of the Named Defendants’ infringing activities, and the manner in which the Named

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Defendants have implemented the affiliate program.

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III.

REQUESTED EXPEDITED DISCOVERY

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As discussed above, Plaintiff seeks to expeditiously obtain evidence that will demonstrate

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the scope and extent of Defendants’ infringement of the FACEBOOK mark through immediate

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service of the following discovery:

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1. Interrogatories and Requests for Inspection of Documents and Things related to:

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a. The Face Book Of Sex affiliate network, including but not limited to the

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identities of the Doe Defendants and details regarding how the affiliate

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network functions, how Named Defendants track traffic received from the Doe

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Defendants, and the Named Defendants’ incentivizing of the Doe Defendants’

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infringing activities (whether financial or otherwise); and

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ATTORNEYS AT LAW
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b. Named Defendants’ direct infringing activities to be enjoined in any
3.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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preliminary injunction, including the establishment and operation of the Face

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Book of Sex website, and the Named Defendants’ use of any other infringing

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domains or advertisements that direct traffic to the Named Defendants’ sites.

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True and correct copies of the discovery requests to be propounded on Named

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Defendants are attached to the Norberg Declaration as Exhibits H and I. Given the

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ongoing irreparable harm being caused by the defendants’ activities, and the need to

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move expeditiously for a preliminary injunction, Plaintiff requests that the normal 30

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day period for responses to written discovery be shortened to 15 days with respect to

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Exhibits H and I.

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2. A Notice of Deposition to FriendFinder Networks, Inc., as reflected in Exhibit J to the

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Norberg Declaration.

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3. Plaintiff further seeks authorization to issue subpoenas to Domains By Proxy and

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other web hosting services that veil the contact information for the Doe Defendants,

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and other third-parties, such as payment processors and domain hosting services, and

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notice percipient witness depositions to individual employees of the Named

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Defendants, whom Plaintiff anticipates will be identified as part of this early

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discovery, to the extent necessary to determine the identities of the Doe Defendants

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and the nature of the Named Defendants’ affiliate program.

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IV.

THERE IS GOOD CAUSE TO PERMIT PLAINTIFF TO IMMEDIATELY SERVE THE
REQUESTED DISCOVERY

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The Court may, for good cause, authorize discovery prior to the Federal Rule of Civil

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Procedure Rule 26(f) meeting of the parties. Semitool, Inc. v. Tokyo Electron Am., Inc., 208

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F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause exists ‘where the need for expedited discovery,

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in consideration of the administration of justice, outweighs the prejudice to the responding

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party.’” In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal.

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2008) (quoting Semitool, Inc., 208 F.R.D. at 276). Courts have found that “good cause” for early

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expedited discovery existed in cases where the identities of the alleged defendants are not known

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prior to the filing of the complaint. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980);

COOLEY LLP
ATTORNEYS AT LAW
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4.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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Arista Records, LLC v. Does 1-12, No. 1:08-cv-1242–OWW–GSA, 2008 WL 4133874, at *1

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(E.D. Cal. Sept. 4, 2008); UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA, 2008 WL

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4104214, at *3-5 (N.D. Cal. Sept. 3, 2008). Good cause for expedited discovery can also exist in

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cases involving infringement or unfair competition in which a preliminary injunction is sought.

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See Pod-Ners, LLC v. N. Feed & Bean of Lucerne, LLC, 204 F.R.D. 675, 676 (D. Colo. 2002);

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Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).

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Good Cause For Expedited Discovery Exists Because the Identity of the Doe
Defendants Cannot be Known Without Additional Discovery From Named
Defendants

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Facebook seeks expedited discovery on the Doe Defendants, the owners and operators of

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the Face Book of Sex website affiliates. Facebook cannot determine with any certainty the

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identity and/or the contact information of Doe Defendants, without the information possessed by

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Named Defendants. Courts have found “good cause” existed in similar circumstances where

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plaintiffs have been unable to identify the proper defendants without early expedited discovery.

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In Gillespie, a pro se plaintiff was attempting to file a complaint against United States Marshalls

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for their treatment of him while in their custody. Gillespie, 629 F.2d at 639. After the district

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court granted the defendants’ motion to dismiss, plaintiff appealed based, in part, on the district

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court’s dismissal of his interrogatories requesting the names and addresses of potential defendants

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in the suit. Id. at 642-43. The court held that in situations “where the identity of alleged

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defendants will not be known prior to the filing of a complaint. . . . [T]he plaintiff should be given

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

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

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grounds.” Id. at 642. Courts have applied this reasoning in circumstances like these, where a

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defendant’s identity is shielded by the anonymity of the internet. Arista Records, 2008 WL

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4133874, at *1-2 (citing Gillespie in ordering a third party internet service provider to provide

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information sufficient to identify individuals who downloaded copyrighted works, including

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names, addresses, telephone numbers, and email addresses); see also UMG Recordings., 2008

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WL 4104214, at *5-6.

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A.

Named Defendants are the operators of the Face Book of Sex affiliate network. An initial
5.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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investigation by Facebook uncovered more than 100 affiliate websites using infringing domain

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names.

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advertisements may be even more widespread. But efforts to uncover the ownership of these sites

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have been frustrated by proxy service domain registration. See, e.g., Norberg Decl. Ex. F. Even

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for those sites with listed owners, such information is often inaccurate. See, e.g., Draft Report for

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the Study of the Accuracy of WHOIS Registrant Contact Information, ICANN, January 17, 2010,

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(“only 23% of [WHOIS] records were fully accurate, but twice that number met a slightly relaxed

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version of the criteria. . .”)1. Moreover, absent discovery, there is no way for Plaintiff to identify

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with certainty whether there are other infringing affiliate websites that were not identified as a

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Facebook’s investigation indicates that the network of affiliates using infringing

result of Facebook’s initial investigation.

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By virtue of their financial arrangements with the Doe Defendants, Named Defendants

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will necessarily have contact and payment information for these individuals or entities. Facebook

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seeks early discovery of this information to amend its complaint and to expeditiously and

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efficiently pursue its motion for a preliminary injunction against all Defendants. Accordingly,

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Facebook respectfully request that the Court grant Facebook’s motion for expedited discovery

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regarding the identity of the Doe Defendants.

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B.

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Good Cause Exists Because Expedited Discovery Will Help Plaintiff Establish
A More Complete Record In Support Of Its Anticipated Preliminary
Injunction Motion

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Facebook’s complaint requests injunctive relief, and Facebook intends to file a motion for

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a preliminary injunction against all Defendants. Indeed, Facebook seeks expedited discovery in

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order to accelerate resolution of its anticipated motion for a preliminary injunction by providing

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the Court the necessary evidentiary record on which to issue an order to enjoin all infringing uses

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of the FACEBOOK trademark, including infringement by the Doe Defendants. Courts have

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allowed expedited discovery when a plaintiff is seeking injunctive relief. See Ellsworth Assocs.,

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Inc. v. United States, 917 F. Supp. 841, 844 (D.D.C. 1996) (stating expedited discovery is

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particularly appropriate in cases where plaintiff is seeking injunctive relief); Edudata Corp. v.

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Available at http://www.icann.org/en/compliance/reports/whois-accuracy-study-17jan10-en.pdf.
6.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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Scientific Computers, Inc., 599 F. Supp. 1084, 1088 (D. Minn. 1984) (holding that expedited

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discovery should be granted because further development of the record before the preliminary

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injunction hearing would better enable the court to judge the parties interests and respective

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chances for success on the merits); see also Am. Legalnet Inc. v. Davis, 673 F. Supp. 2d 1063,

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1066-67 (C.D. Cal. 2009).

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While Named Defendants’ scheme on its own provides a strong basis for this Court to

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enter a preliminary injunction, details regarding the Named Defendants’ affiliate network cannot

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be easily ascertained from publicly available information. Absent discovery on the manner in

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which the affiliate program is implemented and maintained, Plaintiff and the Court cannot fully

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determine the most effective and reasonable method for enjoining the all infringing uses of the

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FACEBOOK mark attributable to the affiliate network. Expedited discovery on the Named

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Defendants’ direct infringement of the FACEBOOK mark will also allow Facebook to present a

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more complete evidentiary record when making its motion for preliminary injunction, by

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allowing Facebook to present direct rather than circumstantial evidence on factors such as the

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Named Defendants’ intent in selecting the FACE BOOK OF SEX mark, and whether the Named

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Defendants have encountered any instances of actual confusion.

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respectfully requests that the Court grant Facebook’s motion for expedited discovery on the topics

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of the Named Defendants’ direct infringement of the FACEBOOK Mark, and the related affiliate

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program.

Accordingly, Facebook

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C.

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Defendants will not be unduly prejudiced by Facebook’s requests.

Defendants Will Not be Unduly Prejudiced by Facebook’s Discovery Requests
In determining

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whether a party will be unduly prejudiced by a request for expedited discovery, courts consider,

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among other things, the reasonableness and breadth of the request, as well as when the party was

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put on notice of the potential lawsuit. Semitool, 208 F.R.D. at 276-77.

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Facebook’s requests are both narrow and reasonable. Facebook is not requesting all

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documents relevant to the claims made in its complaint. Instead, Facebook is only seeking a

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small subset of relevant documents necessary to build the evidentiary record for Facebook’s

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anticipated preliminary injunction motion, and to identify and serve the Doe Defendants. Named

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7.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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Defendant Various received notice of these claims long before this complaint was filed through

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Facebook’s correspondence and follow-up discussions. Complaint (D.I. 1), Ex. G; Norberg Decl.

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Exs. K-L. Named Defendants cannot claim to have been caught unaware by this lawsuit.

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Finally, even to the extent Facebook’s request create a burden on Named Defendants, that

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burden is heavily outweighed by the Plaintiff’s interest in expeditiously ending the defendants’

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infringing activities. The Named Defendants created the need for this early discovery by setting

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up a blatantly infringing website and establishing strong incentives for third-parties to infringe

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Facebook’s Mark. Having enjoyed the financial benefits of establishing this network, defendants

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cannot now complain that the burden associated with dismantling the network is somehow undue.

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D.

Named Defendants’ Changes to the Face Book Of Sex Website Do Not Render
Early Discovery Unnecessary

The Named Defendants’ changes to the Face Book Of Sex website, made after Plaintiff
filed this complaint, do not alleviate the need for early discovery or a preliminary injunction.
Shortly after this case was filed, Named Defendants altered the landing page of
www.facebookofsex.com to display the following message:

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Norberg Decl. Ex. G. Named Defendants have also introduced certain measures that prevent
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FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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some, but not all, of the Doe Defendants from sending traffic to the Named Defendants’ sites.

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See, e.g., Norberg Decl. Ex. B. These changes do not alleviate the need for early discovery in

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advance of a motion for preliminary injunction because the defendants’ infringing activity has not

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ceased, and there is no guarantee that Named Defendants will not resume their prior activities.

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See Polo Fashions, Inc. v. Dick Bruhn, Inc., 793 F.2d 1132, 1135-36 (9th Cir. 1986) (voluntary

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cessation of infringing activity not grounds for denial of preliminary injunction absent some

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guarantee that infringing activity would not restart).

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Initially, the change to the www.facebookofsex.com website does nothing to remedy the

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extensive infringement by the Doe Defendants, who continue to use infringing domains and

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marks to direct traffic to the Named Defendants’ sites. See, e.g., Norberg Decl. ¶¶6-7 & Exs. D-

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E. Plaintiff has identified over 100 similarly infringing domains. And, as is evident from the

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screen print above, Named Defendants still allow users of the Face Book Of Sex website to log in

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via the infringing domain www.facebookofsex.com.

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In short, Plaintiff is continuing to be irreparably harmed despite the changes to the

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www.facebookofsex.com website. Named Defendants continue to use the FACEBOOK mark as

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a domain, and continue to benefit from the Doe Defendants’ infringing activities.

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E.

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Finally, Facebook has satisfied its meet and confer obligations by engaging in lengthy

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meet and confer sessions with opposing counsel, which have not resulted in a resolution of this

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matter. The day after Facebook filed the Complaint in this action, Facebook sent David Bloom,

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counsel for Defendant Various, Inc., a letter enclosing the complaint, and explaining that

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Facebook intended to file a motion for expedited discovery and preliminary injunction if the

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defendants did not take certain actions designed to ensure, among other things, that the third-party

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infringement created by the defendants’ affiliate program could be quickly stopped. Norberg

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Decl. ¶13 & Ex. K. Following that call, the parties held a series of calls in an effort to resolve the

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case without the need for further Court intervention, all but two of which are confidential and

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subject to Federal Rule of Evidence 408. Id. ¶14. On April 18, 2011, counsel for the parties held

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a meet and confer call in which Facebook noted that it would file a motion for expedited

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Facebook Has Satisfied Its Meet and Confer Obligation

9.

FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA

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discovery unless the defendants complied with the demands in its April 14 letter. Id. ¶15. The

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defendants did not comply with those demands, but Facebook continued to discuss the possibility

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of settlement nonetheless. When it became clear that the parties would not be able to settle the

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matter, Facebook initiated a final meet and confer in an attempt to obtain the discovery requested

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in this motion. Id. ¶16 & Ex. L. Those efforts failed, and this motion followed.

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V.

CONCLUSION

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Good cause exists for the Court to order expedited discovery because it is necessary to

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determine the identity of the Doe Defendants and the expedited discovery will provide the

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necessary evidentiary record for the Court to adjudicate Plaintiff’s preliminary injunction. Thus,

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this Court should grant Plaintiff’s motion for expedited discovery and permit Plaintiff to

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immediately serve discovery attached to the Norberg Declaration on Named Defendants, and to

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issue subpoenas and other discovery necessary to determine the true identities of the Doe

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Defendants.

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Dated: May 12, 2011

COOLEY LLP
MICHAEL G. RHODES
ANNE H. PECK
JEFFREY T. NORBERG
GAVIN L. CHARLSTON

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/s/ Jeffrey T. Norberg
Jeffrey T. Norberg
Attorneys for Plaintiff
FACEBOOK, INC.

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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

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FACEBOOK MOTION FOR EXPEDITED DISCOVERY
CASE NO. 4:11-CV-01805-SBA