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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1 2 United States District Court Northern District of California 3 4 5 6 READIFY, Pty Ltd., an Australian 7 Corporation, Plaintiff, 8 9 10 v. READIFYBLOG, an individual, ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO ENGAGE IN LIMITED THIRD PARTY EXPEDITED DISCOVERY Defendant. 11 United States District Court Northern District of California Case No.: CV 12-05357 KAW 12 I. BACKGROUND 13 Plaintiff Readify, Pty Ltd., an Australian corporation, filed this action on October 17, 2012 14 15 asserting claims for defamation and tortious interference with prospective economic advantage. 16 (See Compl., Dkt. No. 1., ¶ 4) The Court is believed to have subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) 17 18 over the parties, as Plaintiff is a foreign corporation. (Id. at ¶ 9.) Venue is proper as the blog 19 hosting service Automattic, Inc. (d/b/a is located within the Northern District of 20 California. (Id. at ¶ 8.) 21 Plaintiff alleges that Defendant “Readifyblog” is a blog (previously located at 22 being operated by an unknown individual who is using the 23 website to damage Plaintiff's reputation. (Compl., ¶¶ 13-17.) On October 30, 2012, Plaintiff filed 24 an ex parte application for permission to take limited, expedited third party discovery in order to 25 obtain the subscriber contact information of the individual who signed up for the “Readifyblog” 26 Wordpress.com1 user account. (Ex parte Appl., Dkt. No. 5.) Plaintiff requests that the Court 27 allow it to serve a subpoena on Automattic, Inc., to obtain “Readifyblog's “subscriber 28 1 Not to be confused with, which is not involved in this litigation. 1 information, so that it can complete service of process and substitute the name of the individual 2 subscriber for user “Readifyblog.” (Id. at 2.) As discussed below, Plaintiff’s ex parte application fails to demonstrate that good cause 3 4 exists to permit Plaintiff to engage in this preliminary discovery. Accordingly, the Court 5 DENIES WITHOUT PREJUDICE Plaintiff's application for the reasons outlined below. II. DISCUSSION 6 A. Legal Standard 7 A court may authorize early discovery before the Rule 26(f) conference for the parties’ 9 and witnesses’ convenience and in the interest of justice. Fed. R. Civ. P. 26(d); Civil L.R. 7-10 10 (2012). Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good 11 United States District Court Northern District of California 8 cause” for the early discovery. See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 12 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010). When the identity of a defendant is unknown 13 before the complaint is filed, a plaintiff "should be given an opportunity through discovery to 14 identify the unknown defendants unless it is clear that discovery would not uncover the identities, 15 or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 16 642 (9th Cir. 1980). 17 In evaluating whether a plaintiff establishes good cause for attempting to learn the identity 18 of Doe defendants through early discovery, courts examine whether plaintiff (1) has identified the 19 Doe defendants with sufficient specificity that the court can determine that the defendants are real 20 people who can be sued in federal court, (2) has recounted the steps it has taken to locate and 21 identify the defendant, (3) has demonstrated that the action can withstand a motion to dismiss, and 22 (4) has proved that the discovery is likely to lead to identifying information that will permit 23 service of process. Columbia Ins. v., 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). B. Plaintiff has Not Shown Good Cause to Permit Early Discovery 24 Plaintiff has not made a sufficient showing under each of the four factors listed above to 25 26 establish good cause to permit it to engage in early discovery to identify Defendant 27 “Readifyblog.” 28 /// 2 1 First, Plaintiff has identified user “Readifyblog” with sufficient specificity 2 by providing the unique username and URL assigned to him/her on the approximate date and time 3 Plaintiff alleges Defendant engaged in the alleged conduct. (Compl., ¶¶ 13-17.) 4 Second, Plaintiff failed to adequately describe all possible steps taken to locate and 5 identify Defendant. While there may not be much investigation that can be performed, Plaintiff 6 bears the burden of outlining those steps and the efforts that must be taken to locate and identify 7 Defendant. 8 9 10 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 11 likely to lead to the identifying information necessary for it to effect service of process on 12 Defendant. In fact, neither Plaintiff’s application nor proposed order outline the specific account 13 information it is seeking from Automattic, Inc.—i.e. name, email address, mailing address, and 14 phone number—and how that information would be sufficient to ascertain subscriber 15 “Readifyblog’s” true identity. Some “account information” may not be discoverable. Plaintiff 16 needs to identify exactly what type of information it seeks. 17 In light of Plaintiff’s failure to satisfy each of the four factors above, the Court finds that 18 Plaintiff has failed to show good cause to permit early discovery to obtain the subscriber 19 information for user “Readifyblog." The Court is willing, however, to entertain a 20 subsequent ex parte application should Plaintiff correct the deficiencies contained in its original 21 application. III. CONCLUSION 22 23 24 25 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. 26 27 DATE: November 29, 2012 ___________________________ KANDIS A. WESTMORE United States Magistrate Judge 28 3

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