Heath v. Does 1-5

Filing 8

ORDER; Plaintiff's 4 Motion for Leave to Take Immediate Discovery is GRANTED, by Magistrate Judge Kristen L. Mix on 11/7/2012.(klmcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02857-MSK-KLM
PHILLIP HEATH, an individual,
Plaintiff,
v.
JOHN DOES 1-5,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to Take Immediate
Discovery [Docket No. 4; Filed November 4, 2012] (the “Motion”). Plaintiff requests leave
to serve subpoenas on third parties Facebook, Inc., and Google, Inc., in order to learn
Defendants’ identities. According to Plaintiff, “Defendants are an unknown person or
persons who have created websites and social media profiles impersonating Plaintiff.” [#4]
at 1. Through the subpoenas, Plaintiff intends to obtain the “identity and/or the IP address
or addresses of the users responsible for creating the imposter websites and social media
profiles.” Id. Plaintiff contends that if he is only able to obtain the IP addresses, he intends
to further subpoena the internet service providers to determine the Defendants’ identities.
Id.
In this action, Plaintiff, a professional bodybuilder and the current “Mr. Olympia,”
alleges that over the past few months he has learned about numerous Internet sites, blogs,
Facebook profiles and Twitter profiles that purport to be controlled by Plaintiff but are not.
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[#1] at 1-2. He alleges seven claims for relief including trademark infringement, trademark
dilution, false designation of origin, cybersquatting, invasion of privacy by appropriation,
deceptive trade practice - unfair competition, and intentional interference with contractual
relations. Id. at 3-8.
While a party ordinarily may not seek discovery prior to conferring with all other
parties, Fed. R. Civ. P. 26(d)(1), the Court may allow expedited discovery on a showing of
good cause. Qwest Commc’ns Int’l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419
(D. Colo. 2003). “Courts have found good cause for expedited discovery when physical
evidence may be destroyed with the passage of time, in cases involving claims of
infringement and unfair competition, and where the party requesting discovery seeks a
preliminary injunction.” Kabyesiza v. Rodriguez, No. 10-cv-00216-MSK-KLM, 2010 WL
3923093, at *3 (D. Colo. Oct. 1, 2010) (unreported decision) (citations omitted). “In internet
infringement cases, courts routinely find good cause exists to [permit issuance of] a Rule
45 subpoena to discover a Doe defendant’s identity, prior to a Rule 26(f) conference, where
a plaintiff makes a prima facie showing of infringement, there is no other way to identify the
Doe defendant, and there is a risk an ISP will destroy its logs prior to the conference.”
UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA, 2008 WL 4104214, at *4 (N.D. Cal.
Sept. 3, 2008) (unreported decision) (citations omitted).
In this case, the Court finds that Plaintiff has demonstrated good cause for allowing
expedited discovery for the limited purpose of identifying Defendants. According to
Plaintiff’s allegations, unknown individuals or entities have established websites that claim
to be operated by Plaintiff. Without the issuance of subpoenas at this stage, Plaintiff would
have no other means of identifying Defendants. Accordingly,
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IT IS HEREBY ORDERED that the Motion [#4] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff may serve subpoenas pursuant to Fed R.
Civ. P. 45 on Facebook, Inc., and Google, Inc, both Delaware corporations with their
principal executive offices in California. Such subpoenas may require the production of
only the following information: the true names, addresses, telephone numbers, and e-mail
addresses associated with the Facebook profiles and Google user accounts involved in the
alleged imposter websites identified in the Verified Complaint [#1] at 2.
IT IS FURTHER ORDERED that a copy of this Order must be served along with any
subpoena issued pursuant to it.
IT IS FURTHER ORDERED that the entities served with a subpoena issued
pursuant to this Order shall have fourteen (14) days to file a motion seeking to quash the
subpoena. Accordingly, any subpoena served pursuant to this Order must specify that the
recipient entity has at least fifteen (15) days to respond with the required information.
IT IS FURTHER ORDERED that any information disclosed to Plaintiff in response
to a subpoena issued pursuant to this Order may be used by Plaintiff solely for the purpose
of protecting his rights under the claims for relief set forth in the Verified Complaint [# 1].
Dated: November 7, 2012

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