TMT Investments PLC et al v. Doe, 1-10

Filing 10

ORDER: (1) denying without prejudice 6 Ex Parte Application for Expedited Discovery; and (2) Continuing Case Management Conference to June 30, 2015. Signed by Magistrate Judge Howard R. Lloyd on 4/8/2015. (hrllc1, COURT STAFF) (Filed on 4/8/2015)

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*E-Filed: April 8, 2015*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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TMT INVESTMENTS PLC; et al.,
Plaintiffs,

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No. C14-05323 HRL
ORDER:

v.
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JOHN DOE, 1-10,
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(1) DENYING WITHOUT PREJUDICE
EX PARTE APPLICATION FOR
EXPEDITED DISCOVERY; and

Defendants.
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(2) CONTINUING CASE
MANAGEMENT CONFERENCE TO
JUNE 30, 2015

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[Re: Docket No. 6]
____________________________________/

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TMT Investments PLC, German Kaplun, and Alexander Morgulchik sue John Doe, 1-10, for
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defamation, invasion of privacy, interference with business relations, and trademark infringement.
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Plaintiffs allege that in the fall of 2014, the Doe defendants began to publish the blogs
armdconflict.wordpress.com (“Armdconflict Blog”) and tmtinvestments.wordpress.com (“TMT

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Blog”). Armdconflict Blog is allegedly dedicated to describing a perceived conflict between Kaplun
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and Morgulchik, and the CEO of Armada OAO. The TMT Blog has allegedly published statements
that question the integrity of the Plaintiffs and insinuate their involvement in criminal dealings. In

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addition, Plaintiffs allege that in October 2014, the Doe defendants began publishing the Facebook
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page, “TMT Investments Plc,” at http://www.facebook.com/tmtinvestments (“Facebook Page”).
According to Plaintiffs, the Facebook page uses TMT Investments’ trade name without

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authorization and creates a risk of confusion in the public as to TMT Investments’ sponsorship or

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approval of the publications on the Facebook Page. In addition, the Facebook Page allegedly

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includes links to the Armdconflict Blog and the TMT Blog.

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Presently before the Court is Plaintiffs’ Ex Parte Application for Expedited Discovery. Dkt.

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No. 6. Plaintiffs request leave to take depositions and obtain documents from Automattic, Inc. and

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Facebook, Inc. to learn the identities of the Doe defendants. Plaintiffs argue that the Doe defendants

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have not published their true names or contact information on the Blogs or Facebook Page, and

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Plaintiffs have been unable to determine the identity of the publishers based on publicly accessible

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information.

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Under Fed. R. Civ. P. 26(d)(1), discovery is not permitted without a court order prior to a

For the Northern District of California

United States District Court

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conference between the parties as required by Fed. R. Civ. P. 26(f) and then only upon a showing of

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“good cause.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275 (N.D. Cal. 2002).

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When considering good cause, courts consider: whether: (1) the plaintiff can identify the missing

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party with sufficient specificity such that the Court can determine that the defendant is a real person

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or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps taken

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to locate the elusive defendant; (3) the plaintiff’s suit against the defendant could withstand a

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motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of

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being able to identify the defendant through discovery such that service of process would be

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possible. Patrick Collins, Inc. v. John Does 1-54, No. CV-11-1602, 2012 WL 911432, at *3 (D.

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Ariz. Mar. 19, 2012).

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When a plaintiff does not know the defendant’s identity at the time a complaint is filed,

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courts may grant the plaintiff’s early discovery to determine the doe defendant’s identity “unless it

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is clear that discovery would not uncover the identit[y], or that the complaint would be dismissed on

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other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In Gillespie, the Ninth

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Circuit held that the district court abused its discretion in denying early discovery because it was

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“very likely” that the requested early discovery—interrogatories directed to named defendants—

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would “have disclosed the identities of the ‘John Doe’ defendants.” Id. at 643; see also Wakefield v.

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Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie, 629 F.2d at 642); Young v.

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Transp. Deputy Sheriff I, No. 08-15584, 2009 WL 2011201, at *1 (9th Cir. July 6, 2009) (applying

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the Gillespie standard).

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Here, Plaintiffs have not made the required showing of good cause. Specifically, Plaintiffs

the Court can determine that the defendants are real persons or entities who could be sued in federal

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court, whether Plaintiffs’ suit against the defendants could withstand a motion to dismiss, and

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whether there is a reasonable likelihood of being able to identify the defendants through discovery

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such that service of process would be possible. In addition, although Plaintiffs conclusorily state

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that they “have been unable to determine the identity of the publishers based on publicly accessible

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For the Northern District of California

have not addressed whether they can identify the missing parties with sufficient specificity such that

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United States District Court

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information,” they do not specify what steps they have taken in an attempt to determine the identity

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of the publishers. Ex Parte Appl. at 4.

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Accordingly, Plaintiffs’ Ex Parte Application is denied without prejudice. Plaintiffs are

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granted leave to re-file an application for expedited discovery. In addition, the case management

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conference, currently set for April 14, 2015, is continued to June 30, 2015, at 1:30 p.m.

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IT IS SO ORDERED.
Dated: April 8, 2015
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C14-05323 HRL Notice will be electronically mailed to:

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Ganka Alexandrova Hadjipetrova

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail]

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For the Northern District of California

United States District Court

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