Sapa v. Florence

Filing 8

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that plaintiff's Motion for Leave to Take Discovery Prior to Rule 26(f) Conference [ECF # 6 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff may serve immediate discovery on third party ISP Yahoo, Inc. to obtain the true identity of defendant Fredrica Florence by serving a subpoena pursuant to Fed. R. Civ. P. 45 that seeks information sufficient to identify "Fredrica Florence". (SEE FULL ORDER FOR ALL REQUIREMENTS.) IT IS FURTHER ORDERED that the Rule 45 subpoena served upon Yahoo, Inc., pursuant to this Order shall have a copy of this Order attached. Signed by District Judge Catherine D. Perry on 1/11/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT SAPA,
Plaintiff,
v.
FREDRICA FLORENCE,
Defendant.

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No. 4:15CV1787 CDP

MEMORANDUM AND ORDER
Plaintiff Robert Sapa brings this copyright infringement action against
defendant Fredrica Florence, whom plaintiff avers is a resident of San Diego,
California. Plaintiff contends that defendant unlawfully infringed plaintiff’s
original jewelry design for which a copyright application is pending. Plaintiff has
been unsuccessful in his efforts to locate a physical address for defendant in order to
effectuate service of process, and suspects that defendant is concealing his/her true
identity and location. Plaintiff now requests that he be permitted to seek discovery
from defendant’s internet service provider (ISP), Yahoo, Inc., that will provide him
with relevant information regarding defendant’s identity from which he can obtain a
physical address for service.1 Subject to certain protections, I will grant plaintiff’s
motion. Accordingly,

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Plaintiff requests such discovery from Yahoo, Inc., “or any other ISPs which have access to

IT IS HEREBY ORDERED that plaintiff’s Motion for Leave to Take
Discovery Prior to Rule 26(f) Conference [ECF #6] is GRANTED.
IT IS FURTHER ORDERED that plaintiff may serve immediate discovery
on third party ISP Yahoo, Inc. to obtain the true identity of defendant “Fredrica
Florence” by serving a subpoena pursuant to Fed. R. Civ. P. 45 that seeks
information sufficient to identify “Fredrica Florence,” including name, current (and
permanent) addresses, e-mail addresses, and Media Access Control addresses. The
disclosure of this information is consistent with the ISP’s obligations under the
Cable Service Privacy Act, 47 U.S.C. § 551(c)(2)(B), which provides
(2) A cable operator may disclose [personally identifiable]
information if the disclosure is ——
...
(B) subject to subsection (h) of this section, made pursuant to a
court order authorizing such disclosure, if the subscriber is
notified of such order by the person to whom the order is
directed.
Any information disclosed to plaintiff in response to the Rule 45 subpoena may be
used by him solely for the purpose of protecting his rights as set forth in the
complaint.
IT IS FURTHER ORDERED that, within seven (7) days of being served
with the Rule 45 subpoena, Yahoo, Inc., shall give written notice to the defendant-

Defendant’s relevant personal information[.]” (Memo., ECF #7 at 2.) Because plaintiff
specifically identifies only Yahoo, Inc., as an ISP with relevant information, I will restrict
discovery to only that ISP.
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subscriber in question, which shall include a copy of the Rule 45 subpoena and a
copy of this Order. Yahoo, Inc., may serve the defendant-subscriber using any
reasonable means, including written notice sent to his or her last known address,
transmitted either by first-class mail or via overnight service.
IT IS FURTHER ORDERED that, within twenty-one (21) days after
service of the subpoena, Yahoo, Inc., and/or the defendant-subscriber may file
motions with this Court contesting the subpoena, as well as any request to litigate the
subpoena anonymously (“the motion period”). Yahoo, Inc., shall not turn over any
identifying information to plaintiff prior to the expiration of this motion period. If
either Yahoo, Inc., or the defendant-subscriber files a motion to quash or otherwise
challenges the subpoena, Yahoo, Inc., shall not turn over to plaintiff any information
relating to the defendant-subscriber until the issues have been addressed and the
Court issues an Order instructing it to turn over the requested discovery.
IT IS FURTHER ORDERED that, if neither Yahoo, Inc., nor defendantsubscriber moves to challenge the subpoena within the motion period, Yahoo, Inc.,
shall produce to plaintiff the information responsive to the subpoena within seven
(7) days after the expiration of the motion period.
IT IS FURTHER ORDERED that, if defendant-subscriber moves to
challenge the subpoena or to proceed anonymously, he/she shall at the same time as
his/her filing also notify Yahoo, Inc., so that it is on notice not to release any of the
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respective contact information to plaintiff until the Court rules on any such motion.
IT IS FURTHER ORDERED that Yahoo, Inc., shall preserve any
subpoenaed information pending the resolution of any timely-filed challenge to the
subpoena.
IT IS FURTHER ORDERED that the Rule 45 subpoena served upon
Yahoo, Inc., pursuant to this Order shall have a copy of this Order attached.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 11th day of January, 2016.

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