United Pet Group, Inc. v. John Doe

Filing 6

MEMORANDUM AND ORDER ( PLEASE SEE ORDER FOR COMPLETE DETAILS ) IT IS HEREBY ORDERED that Plaintiffs motion for leave to take discovery prior to the Rule 26(f) conference is GRANTED. (Doc. No. 3.) IT IS FURTHER ORDERED that Plaintiff may immedi ately serve Rule 45 subpoenas on Amazon.com and other like entities to obtain information necessary to identify the Doe Defendants herein. The subpoenas shall have a copy of this Memorandum and Order attached. Plaintiff shall have 30 days from the date of this Memorandum and Order to serve the subpoenas. Signed by District Judge Audrey G. Fleissig on 8/20/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED PET GROUP, INC.,
Plaintiff,
v.
JOHN DOES,
Defendants.

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Case No. 4:13CV01053 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Plaintiff United Pet Group, Inc.,
(“UPG”) for leave to take expedited discovery pursuant to Federal Rule of Civil
Procedure 26(d)(1) prior to the Rule 26(f) conference in this case. For the reasons set
forth below, the motion shall be granted.
Background
In this action Plaintiff alleges that an unspecified number of John Doe Defendants
unlawfully distributed and sold counterfeit products and/or packaging using UPG’s
FURminator trademarks and logos (“FURminator Marks”) on various websites including
Amazon.com. Plaintiff asserts that Defendants have taken affirmative steps to hide their
identities by registering seller accounts with Amazon.com and possibly other like entities
under false names and addresses. Plaintiff has requested but Amazon.com has refused to
voluntarily provide additional information to permit Plaintiff to identify the Defendants.
Plaintiff states, upon information and belief, that Amazon.com and other like entities
maintain records from which Plaintiff will be able to learn Defendants’ identity.

Plaintiff seeks an order for expedited discovery to attempt to identify Defendants’
identity by serving Rule 45 subpoenas on Amazon.com and other third parties that have
had contact with Defendants to obtain information sufficient to determine the identities of
the John Doe Defendants. Plaintiff asserts that good cause exists for expedited discovery
because this information is crucial to the prosecution of Plaintiff’s claims and no other
reasonable means exist to identify Defendants.
Discussion
The Federal Rules of Civil Procedure permit courts to order discovery on an
expedited basis. See Fed. R. Civ. P. 26(d)(1) (stating that “a party may not seek
discovery from any source before parties have conferred as required by Rule 26(f), except
. . . when authorized by . . . court order”). Expedited discovery can be granted when the
party seeking discovery establishes good cause, i.e., that the need for expedited
discovery, in consideration of the administration of justice, outweighs prejudice to a
responding party. See, e.g., Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273,
276 (N.D. Cal. 2002). Courts have allowed expedited discovery in cases, such as this
one, when the identity of the infringing defendant is masked by the defendants’ use of
technology or third parties to hide their true identities. See Warner Bros. Records, Inc. v.
Does 1-6, 527 F. Supp. 2d 1 (D.D.C. 2007).
Here, Plaintiff has demonstrated good cause because it has shown potential
irreparable harm from infringement, no prejudice to Defendants, and limited availability
of the information sought. See Arista Records, L.L.C. v. Does 1-54, No. 4:08-CV-1289
(CEJ), 2008 WL 4104563, at *1 (E.D. Mo. Aug. 29, 2008).
Accordingly,
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IT IS HEREBY ORDERED that Plaintiff’s motion for leave to take discovery
prior to the Rule 26(f) conference is GRANTED. (Doc. No. 3.)
IT IS FURTHER ORDERED that Plaintiff may immediately serve Rule 45
subpoenas on Amazon.com and other like entities to obtain information necessary to
identify the Doe Defendants herein. The subpoenas shall have a copy of this
Memorandum and Order attached. Plaintiff shall have 30 days from the date of this
Memorandum and Order to serve the subpoenas.
IT IS FURTHER ORDERED that the recipients of the subpoenas, including
Amazon.com will have 45 days from the date of service of the Rule 45 subpoena upon
them to serve the relevant Does with a copy of the subpoena and a copy of this
Memorandum and Order. Amazon.com and any other recipients of the subpoenas may
serve the Does using any reasonable means, including written notice sent to their last
known address, transmitted either by first-class mail or via overnight service.
IT IS FURTHER ORDERED that the Doe Defendants shall have 45 days from
the date of service of the Rule 45 subpoena and this Memorandum and Order upon him or
her to file any motions with this Court contesting the subpoena (including a motion to
quash or modify the subpoena), as well as any request to litigate the subpoena
anonymously.
Should any Doe file a motion to quash, motion for protective order, motion to
dismiss, motion to sever, or similarly styled motion seeking similar relief, that specific
Doe’s information will be withheld from Plaintiff until after the Court rules on that Doe’s
motion.

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IT IS FURTHER ORDERED that all other information requested by the
subpoena at issue (e.g., contact information for any non-moving Does) can be produced
to Plaintiff. Amazon.com and other recipients of the subpoenas may not turn over
Defendants’ identifying information to Plaintiff before the expiration of the 45-day
period within which Defendants shall have to contest a subpoena. In addition, if a
Defendant or recipient of a subpoena such as Amazon.com files a motion contesting a
subpoena, the moving entity may not turn over the moving Doe’s information to Plaintiff
until the issues have been addressed and the Court issues an order instructing that entity
to resume turning over the requested discovery.
IT IS FURTHER ORDERED that Amazon.com and the other subpoenaed
entities shall preserve any subpoenaed information pending the resolution of any timelyfiled motion to quash or other similarly styled motion.
IT IS FURTHER ORDERED that if the 45-day period lapses without a Doe
Defendant or the subpoenaed entity from contesting the subpoena, that entity shall have
10 days to produce the information responsive to the subpoena to Plaintiff. A Defendant
who moves to quash or modify the subpoena, or to proceed anonymously, shall at the
same time as his or her filing also notify the subpoenaed entity so that the subpoenaed
entity is on notice not to release that Defendant’s contact information to Plaintiff until the
Court rules on any such motions.
IT IS FURTHER ORDERED that, to maximize judicial efficiency, the Court
will delay ruling on all Doe motions to quash, motions for protective order, motions to
dismiss, motions to sever, or similarly styled motions seeking similar relief filed until the
end of the second 60-day period.
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IT IS FURTHER ORDERED that Plaintiff will file a single opposition to all
motions to quash, motions for protective order, motions to dismiss, motions to sever, or
similarly styled motions seeking similar relief filed. Plaintiff shall have 14 days from the
end of the second 45-day period to do so.
IT IS FURTHER ORDERED that any Doe who has filed a motion to quash,
motion for protective order, motion to dismiss, motion to sever, or similarly styled
motion seeking similar relief, may, if he or she so chooses, file a reply to Plaintiff’s
opposition within 14 days thereof.
IT IS FURTHER ORDERED that Amazon.com and any other recipient of a
subpoena pursuant to this Memorandum and Order shall confer with Plaintiff and shall
not assess any charge in advance of providing the information requested in the subpoena.
If Amazon.com or any other recipient of a subpoena hereunder elects to charge for the
costs of production that entity shall provide a billing summary and cost report to Plaintiff.
IT IS FURTHER ORDERED that any information ultimately disclosed to
Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff solely for the
purpose of protecting, investigating, and resolving Plaintiff’s rights as set forth in its
complaint.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of August, 2013.

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