Palermo v. Underground Solutions, Inc.

Filing 11

ORDER Denying Plaintiff's Motion For Leave To Take Expedited Discovery (Re Doc. 5 ). Signed by Magistrate Judge Barbara Lynn Major on 6/11/2012. (mdc) Modified on 6/11/2012 - Original motion filing was referred to BLM, per WQH chambers. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GENE PALERMO,

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Plaintiff,

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v.

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UNDERGROUND SOLUTIONS, INC.

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Defendants.

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Case No. 12cv1223-WQH (BLM)
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO TAKE
EXPEDITED DISCOVERY
[ECF No. 5]

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Currently before the Court is Plaintiff’s May 21, 2012 Motion for Leave to Take Immediate

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Discovery. ECF No. 5. Having read all papers filed in connection with Plaintiff’s motion for

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expedited discovery, and having considered the issues raised therein, the Court DENIES

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Plaintiff’s motion for the reasons set forth below.

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BACKGROUND

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Plaintiff Gene Palermo asserts that he is an expert, consultant, and published author in the

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plastic piping industry. ECF No. 1 at 2. Plaintiff further explains that over the course of his

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career, he has published a number of papers and given numerous presentations highlighting the

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risks associated with fused PVC piping. Id. Specifically, Palermo asserts that fused PVC piping

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is prone to “rapid crack propagation,” making it unsuitable for industrial use. Id. at 3. Instead,

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Palermo endorses high density polyethylene piping (HDPE) and polyvinyl chloride piping (PVC).

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Id. Sellers of fused PVC piping apparently are direct competitors with sellers of HDPE or PVC

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piping. Id. at 2.

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In 2012, Palermo discovered a website with the domain www.genepalermo.com. Id. at

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3. Palermo asserts that he did not authorize the use of his name in the website, and the

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website’s content was completely at odds with his work. Id. In particular, the website highlights

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the dangers of HDPE piping, which contradicts Palermo’s true opinions. Id.

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Palermo subsequently discovered that the registered owner of the website domain is

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Defendant UGSI (“UGSI”) and that its listed contact person is April Bushhorn, a UGSI employee.

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ECF No. 5-1 at 3, Exh. A.

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pamphlets to plastic pipe manufacturers and purchasers across the country, which describe

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Palermo as an “unqualified shill” with “no independent credibility.” ECF No. 5-2 at 1, Exh. B.

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While the pamphlets were anonymous, Palermo discovered that the author was “bwalker” by

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uncovering the files’ digital metadata.1 ECF No. 5-3 at 1, Exh. C. Palermo believes “bwalker” to

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be Bob Walker, UGSI’s Vice President of Engineering Applications. ECF No. 5 at 2.

Palermo also alleges that UGSI distributed anonymous digital

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On May 21, 2012, Palermo filed the instant action against UGSI. ECF No. 1. On that same

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date, Palermo also filed a motion for preliminary and permanent injunctive relief, and the motion

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for expedited discovery currently pending before this Court. ECF Nos. 3 and 5. Palermo seeks

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an order allowing him to obtain documents and electronically stored information from UGSI

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regarding the creation of the website and pamphlet, as well as the depositions of April Bushhorn

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and Bob Walker. ECF No. 5 at 2-3. In support of his motion, Palermo asserts that early

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discovery is necessary to determine which persons at UGSI were responsible for the website and

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the pamphlet, the extent to which the pamphlet was published, and UGSI’s motivation for

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disparaging Palermo’s reputation. Id. Palermo further states that any information obtained from

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early discovery will be used to bolster his argument for injunctive relief. Id. at 3.

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Metadata is defined as “data that provides information about other data.” MERRIAM-WEBSTER ONLINE
DICTIONARY. http://www.merriam-webster.com (last visited June 4, 2012)

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DISCUSSION
A.

Legal standard for Expedited Discovery

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A party may not seek discovery from any source before the Rule 26(f) conference unless

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that party first obtains a stipulation or court order permitting early discovery. Fed. R. Civ. P.

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26(d)(1). Courts in the Ninth Circuit apply the “good cause” standard in deciding whether to

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permit early discovery. Semitol, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D.

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Cal. 2002) (adopting the conventional standard of “good cause” in evaluating a request for

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expedited discovery).

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consideration of the administration of justice, outweighs the prejudice to the responding party.”

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Id. Good cause for expedited discovery has been found in cases involving claims of infringement

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and unfair competition or in cases where the plaintiff seeks a preliminary injunction. Id. In

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infringement cases, expedited discovery is frequently limited to allowing plaintiffs to identify Doe

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defendants. See, e.g., UMG Recordings, Inc. v. Doe, 2008 WL 4104207 (N.D. Cal. 2008)

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(granting leave to take expedited discovery for documents that would reveal the identity and

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contact information for each Doe defendant). In cases where preliminary injunction motions are

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pending, courts often permit expedited discovery designed to obtain information required for the

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preliminary injunction. See Dimension Data N. Am. v. NetStar-1, Inc., 226 F.R.D. 528, 532

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(E.D.N.C. 2005) (denying request for expedited discovery in part because “the discovery

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requested is not narrowly tailored to obtain information relevant to a preliminary injunction

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determination”). In considering whether good cause exists, factors courts may consider include

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“(1) whether a preliminary injunction is pending; (2) the breadth of the discovery request; (3) the

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purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with

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the requests; and (5) how far in advance of the typical discovery process the request was made.”

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Am. Legalnet, Inc. v. Davis, 673 F.Supp.2d 1063, 1067 (C.D. Cal. 2009).

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B.

Good cause exists “where the need for expedited discovery, in

Analysis

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Palermo states that early discovery is required “to determine which persons at UGSI were

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responsible for the website and the pamphlet, the extent to which the pamphlet has been

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published, and, the motivation for the misappropriation of Plaintiff’s name by Defendant for its
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domain and website and its motivation for the creation and publication of an anonymous

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pamphlet disparaging Plaintiff’s professional reputation.” ECF No. 5 at 3. Palermo also claims

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that “the information gleaned from this discovery will be further used to support [his] motion for

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preliminary and permanent injunctive relief.” Id.

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While Plaintiff states that at least part of the reason for his early discovery request is to

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obtain information for his pending preliminary injunction motion, the facts do not support this

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statement. Palermo already has identified the registered owner of the www.genepalermo.com

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website as UGSI, and the contact person as April Bushhorn, a UGSI corporate officer. ECF No.

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5-1 at 3, Exh. A. Palermo also has identified the author of the pamphlet as Bob Walker, a UGSI

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Vice President. ECF No. 5-3 at 1, Exh. C. Moreover, the Court has reviewed Palermo’s motion

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for preliminary injunction and it only seeks to enjoin UGSI, not any individuals, from engaging

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in specific conduct and it does not identify any missing facts or need for discovery. See ECF No.

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3.

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responsible for the conduct it seeks to enjoin and does not articulate any specific missing

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evidence, Palermo has not established “good cause” for expedited discovery in relation to the

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pending motion for preliminary injunction.

Because Palermo has ascertained the identities of the individuals and entity allegedly

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In addition, Palermo’s discovery requests are excessively broad. For example, in his first

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request for production of documents, Palermo seeks “[a]ll documents and all electronically stored

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information of any type whatsoever related to the identity and address of anyone employed or

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retained by UGSI who was involved in any way with the concept, creation, content, authorship,

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implementation, publication, dates of publication, distribution, display in any format, dates of

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distribution, identities of recipients, creation of mailing lists (including electronic addresses and

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postal mailing addresses), payment of costs, payments of salary, payment of expenses related

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to the www.genepalermo.com website and domain.” See ECF No. 5-4, Exh. D, Request for

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Production No. 1. The other requests are similarly over-broad. Id. These requests are not

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narrowly tailored to obtain evidence relevant to Palermo’s motion for preliminary injunction.

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Instead, Palermo’s request appears to be a vehicle to conduct the entirety of his discovery prior

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to the Rule 26(f) conference, and would present an undue burden on Defendant at this stage in
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the proceedings. See Better Packages, Inc. v. Zheng, 2007 WL 1373055 (D.N.J. 2006) (“Granting

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the requests would lead to the parties conducting nearly all discovery in an expedited fashion

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under the premise of preparing for a preliminary injunction hearing, which is not the purpose of

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expedited discovery”).

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For the foregoing reasons, Palermo has failed to show good cause for why early discovery
should be permitted. Consequently, the Court DENIES Palermo’s motion.
IT IS SO ORDERED.
DATED: June 11, 2012

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BARBARA L. MAJOR
United States Magistrate Judge

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12cv1223-WQH (BLM)