Readify v. Readifyblog

Filing 14

Order by Magistrate Judge Kandis A. Westmore granting 11 Ex Parte Application to Engage in Additional Limited Third Party Expedited Discovery. Plaintiff's request to continue the Case Management Conference is moot, as a separate request was already granted 13 .(kawlc1, COURT STAFF) (Filed on 4/19/2013)

1
2

United States District Court
Northern District of California

3
4
5
6
7
8
9
10

READIFY, Pty Ltd., and Australian
Corporation,
Plaintiff,
v.
READIFYBLOG, an individual,

Case No.: CV 12-05357 KAW
ORDER GRANTING PLAINTIFF'S
EX PARTE APPLICATION FOR
LEAVE TO ENGAGE IN ADDITIONAL
LIMITED THIRD PARTY EXPEDITED
DISCOVERY

Defendant.

United States District Court
Northern District of California

11

I. BACKGROUND

12
13

Plaintiff Readify, Pty Ltd., an Australian corporation, filed this action on October 17, 2012

14

asserting claims for defamation and tortious interference with prospective economic advantage.

15

(See Compl., Dkt. No. 1., ¶ 4)

16

The Court is alleged to have subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)

17

over the parties, as Plaintiff is a foreign corporation. (Id. at ¶ 9.) Venue is proper as the blog

18

hosting service Automattic, Inc. (d/b/a Wordpress.com) is located within the Northern District of

19

California. (Id. at ¶ 8.)

20

Plaintiff alleges that Defendant “Readifyblog” is a blog (previously located at

21

www.readifyblog.wordpress.com) being operated by an unknown individual who used the website

22

to damage Plaintiff's reputation. (Compl., ¶¶ 13-17.) On December 24, 2012, Plaintiff submitted

23

an ex parte application for leave to engage in limited discovery requesting that the Court allow it

24

to serve a subpoena on Automattic, Inc., to obtain “Readifyblog’s” user information, so that it

25

could complete service of process and substitute the name of the individual for user

26

“Readifyblog.” (Dkt. No. 8.) On December 28, 2012, the Court granted that request. (Dkt. No. 9.)

27
28

On March 29, 2013, Plaintiff filed an ex parte application to engage in additional limited
discovery and to continue the case management conference scheduled for April 2, 2013. (Dkt. No.

1

11.) At the Court’s request, Plaintiff filed a separate request to continue the CMC, which was

2

granted. (Dkt. Nos. 12-13.) As a result, Plaintiff’s request to continue the CMC in connection

3

with this ex parte application is moot.

4

In the application presently before the Court, Plaintiff seeks identifying information from

5

“Readifyblog’s” Hotmail email address (“[e-mail]”), which it obtained by

6

subpoena from Automattic, Inc. in connection with the earlier ex parte application. Hotmail is

7

owned and operated by Microsoft, Inc.

8
9

As discussed below, Plaintiff has previously demonstrated that: (1) the Doe defendant is a
real person who may be generally sued in federal court; (2) it has attempted unsuccessfully to
identify the Doe defendant prior to filing this motion; (3) its defamation claims against Doe could

11

United States District Court
Northern District of California

10

survive a motion to dismiss; and (4) there is a reasonable likelihood the service of the proposed

12

subpoena would lead to information identifying Doe. The Court therefore finds that good cause

13

exists to allow Plaintiff to engage in this additional, preliminary discovery. Accordingly, the

14

Court GRANTS Plaintiff’s motion as specifically stated below.
II. DISCUSSION

15
16

A. Legal Standard

17

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

18

and witnesses’ convenience and in the interest of justice. Fed. R. Civ. P. 26(d); Civil L.R. 7-10

19

(2012). Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good

20

cause” for the early discovery. See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010

21

WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010). When the identity of a defendant is unknown

22

before the complaint is filed, a plaintiff “should be given an opportunity through discovery to

23

identify the unknown defendants unless it is clear that discovery would not uncover the identities,

24

or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637,

25

642 (9th Cir. 1980).

26

In evaluating whether a plaintiff establishes good cause for attempting to learn the identity

27

of Doe defendants through early discovery, courts examine whether plaintiff (1) has identified the

28

Doe defendants with sufficient specificity that the court can determine that the defendants are real
2

1

people who can be sued in federal court, (2) has recounted the steps it has taken to locate and

2

identify the defendant, (3) has demonstrated that the action can withstand a motion to dismiss, and

3

(4) has proved that the discovery is likely to lead to identifying information that will permit

4

service of process. Columbia Ins. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

5
6

B. Plaintiff has Shown Good Cause to Permit Early Discovery
As provided in the earlier order granting Plaintiff’s application for ex parte limited

7

discovery, Plaintiff has already made a sufficient showing under each of the four factors listed

8

above to establish good cause to permit it to engage in early discovery to identify Defendant

9

“Readifyblog.” (See Dkt. No. 9.) Since this is simply a request to conduct further discovery
related to the identifying email address obtained by the subpoena on Automattic, Inc., the Court

11

United States District Court
Northern District of California

10

incorporates its earlier analysis by reference and will limit its discussion to the fourth factor.

12

As to the fourth factor, Plaintiff has demonstrated that the proposed subpoena seeks

13

information likely to lead to the identifying information necessary for it to effect service of

14

process on Defendant. Specifically, the proposed subpoena requests the identifying information

15

connected to Defendant’s “Hotmail” email account, as Microsoft requires more personal

16

information than Automattic, Inc. at the time of account creation. (Ex Parte App., Dkt. No. 11, ¶

17

4.) This discovery is likely to lead to identifying information, specifically first and last name,

18

physical address, telephone number, alternate email address, and IP address, and any other

19

account information that Defendant may have provided. (Id., ¶¶ 4-6.)

20

In light of the above, the Court finds good cause to grant Plaintiff leave to conduct

21

additional limited discovery to obtain the registration information from Microsoft, Inc.’s Hotmail

22

email service for the email account “[e-mail].” Further, the Court finds that

23

permitting Plaintiff to continue to engage in limited, early discovery is consistent with Rule 26(d),

24

as it furthers the interest of justice and poses little, if any, inconvenience to the subpoena

25

recipients.

26
27
28

III. CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff's Ex Parte Application for
Leave to Take Additional Expedited Discovery as follows:
3

1

1. Plaintiff shall immediately serve a Rule 45 subpoena on Microsoft, Inc., which owns

2

and operates Hotmail, to provide the account information for the “[e-mail]”

3

email address, including the accountholder’s first and last name, alternate email addresses (if

4

any), date of birth, phone number, zip code, and Internet Protocol (“IP”) address that Defendant

5

used to create the Hotmail email account. The subpoena shall have a copy of this Order attached.

6

2. Should any entity subpoenaed pursuant to this Order wish to move to quash the

7
8
9
10

subpoena, it must do so within thirty (30) days from the date of service.
3. The subpoenaed entity shall preserve any subpoenaed information pending the
resolution of any timely-filed motion to quash.
4. Microsoft, Inc./Hotmail will have thirty (30) days from the date of service upon them

United States District Court
Northern District of California

11

to serve accountholder “[e-mail]” with a copy of the subpoena and a copy of this

12

Order. Microsoft, Inc./Hotmail may serve the user using any reasonable means, including e-mail.

13

5. Email accountholder “[e-mail]” shall have thirty (30) days from the

14

date of service upon them to file any motion in this court contesting the subpoena (including

15

motion to quash or modify the subpoena). If that 30-day period lapses without the user contesting

16

the subpoena, Microsoft, Inc./Hotmail shall have ten (10) days to produce the information

17

responsive to the subpoena to Plaintiff.

18

6. Plaintiff and any entity which receives a subpoena shall confer, if necessary, with

19

respect to the issue of payment for the information requested in the subpoena or for resolution of

20

any other issues that may arise concerning compliance with this Court's order.

21

7. Any entity which receives a subpoena and elects to charge for the costs of production

22

shall provide a billing summary and any cost reports that serve as a basis for such billing

23

summary and any costs claimed by such entity.

24
25
26
27

8. Any information disclosed to Plaintiff in response to this Rule 45 subpoena may be
used by Plaintiff solely for the purpose of protecting Plaintiff’s rights as set forth in its Complaint.
IT IS SO ORDERED.
DATE: April 19, 2013

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

28

4