Readify v. Readifyblog

Filing 7

Order by Magistrate Judge Kandis A. Westmore denying without prejudice 5 Ex Parte Application for Leave to Engage in Limited Third Party Expedited Discovery.(kawlc1, COURT STAFF) (Filed on 11/29/2012)

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United States District Court
Northern District of California

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READIFY, Pty Ltd., an Australian

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Corporation,
Plaintiff,

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v.
READIFYBLOG, an individual,

ORDER DENYING PLAINTIFF'S EX
PARTE APPLICATION FOR LEAVE TO
ENGAGE IN LIMITED THIRD PARTY
EXPEDITED DISCOVERY

Defendant.

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United States District Court
Northern District of California

Case No.: CV 12-05357 KAW

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I. BACKGROUND

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

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

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(See Compl., Dkt. No. 1., ¶ 4)
The Court is believed to have subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)

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

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

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California. (Id. at ¶ 8.)

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

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www.readifyblog.wordpress.com) being operated by an unknown individual who is using the

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website to damage Plaintiff's reputation. (Compl., ¶¶ 13-17.) On October 30, 2012, Plaintiff filed

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an ex parte application for permission to take limited, expedited third party discovery in order to

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obtain the subscriber contact information of the individual who signed up for the “Readifyblog”

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Wordpress.com1 user account. (Ex parte Appl., Dkt. No. 5.) Plaintiff requests that the Court

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allow it to serve a subpoena on Automattic, Inc., to obtain “Readifyblog's “subscriber

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Not to be confused with Wordpress.org, which is not involved in this litigation.

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information, so that it can complete service of process and substitute the name of the individual

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subscriber for user “Readifyblog.” (Id. at 2.)
As discussed below, Plaintiff’s ex parte application fails to demonstrate that good cause

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exists to permit Plaintiff to engage in this preliminary discovery. Accordingly, the Court

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DENIES WITHOUT PREJUDICE Plaintiff's application for the reasons outlined below.
II. DISCUSSION

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A. Legal Standard

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

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

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

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United States District Court
Northern District of California

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

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

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

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

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

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642 (9th Cir. 1980).

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

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

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

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

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

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

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service of process. Columbia Ins. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
B. Plaintiff has Not Shown Good Cause to Permit Early Discovery

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Plaintiff has not made a sufficient showing under each of the four factors listed above to

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

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“Readifyblog.”

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First, Plaintiff has identified Wordpress.com user “Readifyblog” with sufficient specificity

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by providing the unique username and URL assigned to him/her on the approximate date and time

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Plaintiff alleges Defendant engaged in the alleged conduct. (Compl., ¶¶ 13-17.)

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Second, Plaintiff failed to adequately describe all possible steps taken to locate and

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identify Defendant. While there may not be much investigation that can be performed, Plaintiff

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bears the burden of outlining those steps and the efforts that must be taken to locate and identify

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Defendant.

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Third, Plaintiff has pled the essential elements to state a prima facie claim for defamation
and tortious interference with prospective economic advantage. (Compl., ¶¶ 18-30.)
Fourth, Plaintiff has failed to demonstrate that the proposed subpoena seeks information

United States District Court
Northern District of California

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

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Defendant. In fact, neither Plaintiff’s application nor proposed order outline the specific account

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information it is seeking from Automattic, Inc.—i.e. name, email address, mailing address, and

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phone number—and how that information would be sufficient to ascertain subscriber

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“Readifyblog’s” true identity. Some “account information” may not be discoverable. Plaintiff

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needs to identify exactly what type of information it seeks.

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In light of Plaintiff’s failure to satisfy each of the four factors above, the Court finds that

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Plaintiff has failed to show good cause to permit early discovery to obtain the subscriber

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information for Wordpress.com user “Readifyblog." The Court is willing, however, to entertain a

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subsequent ex parte application should Plaintiff correct the deficiencies contained in its original

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application.
III. CONCLUSION

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For the reasons set forth above, the Court DENIES WITHOUT PREJUDICE Plaintiff's Ex
Parte Application for Leave to Take Expedited Discovery.
IT IS SO ORDERED.

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DATE: November 29, 2012

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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