Bizapedia, LLC v. DOES 1-11

Filing 14

ORDER Granting 9 EX PARTE MOTION for Leave to Conduct Early Discovery in accordance with the provisions of this order. Signed by Magistrate Judge George Foley, Jr on 3/17/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BIZAPEDIA, LLC,

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Plaintiff,
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vs.
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DOES 1-10,
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Defendants.
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__________________________________________)

Case No. 2:14-cv-00220-APG-GWF
ORDER

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This matter is before the Court on Plaintiff Bizapedia, LLC’s Ex Parte Motion for Leave to

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Conduct Early Discovery (#9), filed on February 28, 2014. The Court conducted a hearing in this

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matter on March 17, 2014.

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BACKGROUND AND DISCUSSION
Plaintiff Bizapedia, LLC is a Nevada limited liability company that owns and operates a

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website known as “Bizapedia.” Bizapedia states that it extracts information from public business

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record filings, centralizes the information in a searchable database and makes the information

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available to the public at no charge on its website. Bizapedia states that if a person or business

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wishes to have his/her/its information hidden from public searches, then upon request, Bizapedia

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will remove the information from its website at no charge. While Bizapedia does not charge people

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to run searches on its website, Bizapedia is engaged in a commercial enterprise that generates

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revenue primarily through advertising on its site.

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Bizapedia alleges in its complaint, that the Defendants, whom it has not been able to

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identify by their true names, have anonymously published false and disparaging statements about

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Bizapedia on various “consumer watchdog” websites, including <pissedconsumer.com>,

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<complaintsboard.com>, <usaconsumercomplaints.com>, and <complaintwire.org>. The

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published statements included statements that Bizapedia’s business conduct is fraudulent and

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illegal, and that an officer or owner of Bizapedia was previously convicted for possession of child

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pornography. Bizapedia has unsuccessfully attempted to identify Defendant(s) through use of

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technical means. Bizapedia has also written to the “consumer watchdog” websites requesting that

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they remove the offending posts. The websites have not directly responded to Bizapedia’s letters,

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but in some instances have removed the offending posts. Bizapedia believes that the publisher of

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the various defamatory posts are the same person or group of persons based on the similarity of the

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information and language used in the posts. Bizapedia also believes that the Defendant(s) may be a

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Nevada resident(s) and, on information and belief, is a competitor of Bizapedia, rather than a

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consumer.

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As a general rule, a party may not conduct discovery before the parties have met and

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conferred pursuant to Fed.R.Civ.Pro. 26(f). A court may for good cause authorize early discovery

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“‘for the parties’ and witnesses’ convenience and in the interests of justice.’ Fed. [R.Civ.Pro.]

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26(d)(2).’” Quad International, Inc. v. Doe, 2013 WL 178141, *1 (E.D.Cal. 2013), citing Semitool,

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Inc. v. Toyko Electron Am., Inc., 208 F.R.D. 273, 276 (N.D.Cal. 2002). Courts have permitted

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limited discovery after a complaint is filed to permit the plaintiff to learn the identifying facts

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necessary to permit service on the defendant. Columbia Ins. Co. v. SeesCandy.com, 185 F.R.D.

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573, 577 (N.D.Cal. 1999), citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). The

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court recognized that “[w]ith the rise of the Internet has come the ability to commit certain tortious

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acts, such as defamation, copyright infringement, and trademark infringement, entirely on-line.

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The tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete

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identifying information. Parties who have been injured by these acts are likely to find themselves

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chasing the tortfeasor from Internet Service Provider (ISP) to ISP with little or no hope of actually

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discovering the identity of the tortfeasor.” Id. at 578.

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To ensure that such early discovery will only be employed in cases where the plaintiff has in

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good faith exhausted traditional avenues for identifying a civil defendant, and will not be used to

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harass or intimidate, the court in Columbia Ins. Co. adopted the following requirements: (1) the
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plaintiff should identify the defendant with sufficient specificity such that the Court can determine

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that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff should

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identify all previous steps taken to locate the elusive defendant; (3) the plaintiff should establish to

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the court’s satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss;

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and (4) the plaintiff should file a request for discovery identifying the persons or entities on whom

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the discovery process might be served and for which there is a reasonable likelihood that the

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discovery process will lead to identifying information. Id., 185 F.R.D. at 578-79. See also Quad

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International, Inc. v. Doe, 2013 WL 178141, at *2.

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In this case, Bizapedia has reasonably satisfied the Court that the Defendants are real

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persons or a group of persons who have anonymously posted the statements about Bizapedia on the

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referenced “consumer watchdog” websites. Bizapedia’s assertion that a single person or group of

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persons is responsible for the postings also appears reasonable given the common information and

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language used in the postings. Plaintiff has also satisfied the Court that it has undertaken

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reasonable efforts and steps to identify the Defendants prior to filing suit and moving for leave to

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conduct early discovery, but has been unable to discover the true names of the Defendants through

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such efforts. Bizapedia has also established to the Court’s satisfaction that Plaintiff’s suit against

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the Defendants could withstand a motion to dismiss. Bizapedia has attached to its motion verbatim

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copies of the anonymous postings. The court assumes, as it must on a motion to dismiss, that the

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statements that Bizapedia is engaged in illegal or fraudulent conduct, or that one of its officers and

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owners has been convicted of violating child pornography laws, are false. The statements are,

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therefore, by their nature defamatory. Bizapedia has also sufficiently alleged a claim for relief

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under the Lanham Act, 15 U.S.C. §1125(a), on the basis of its information and belief that the

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Defendants are competitors of Bizapedia and the statements therefore constitute false advertising

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designed to damage Bizapedia’s business. (It may be determined during discovery that the

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Defendants are not competitors in which case the Lanham Act claim will not lie. Federal diversity

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jurisdiction may also be otherwise lacking if it is determined that at least one of the Defendants,

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like Plaintiff, is a Nevada resident.)

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...
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Bizapedia initially requests discovery in the form of subpoenas to be served on the four

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“consumer watchdog” websites--<pissedconsumer.com>, <complaintsboard.com>,

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<usaconsumercomplaints.com>, and <complaintwire.org>-- which require them to disclose to

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Plaintiff information sufficient to identify the user data for the listed posts on its websites. The

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identifying information shall include, if possessed by the “consumer watchdog” websites, the name,

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address, phone numbers, Internet Protocol (IP) addresses, Media Access Control (MAC) addresses,

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and email addresses associated with each of the listed posts. Depending on the information

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received pursuant to these subpoenas, Bizapedia may apply to the Court for permission to serve

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subpoenas on the Internet Service Providers (ISP’s) for the IP addresses identified by the

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“consumer watchdog” websites in order to further identify the person or persons responsible for the

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subject posts.

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CONCLUSION
Plaintiff Bizapedia, LLC has shown good cause for the issuance of an order permitting it to

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conduct early discovery in an effort to identify the true names of the Doe Defendants named in its

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complaint. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff Bizapedia, LLC’s Ex Parte Motion for Leave to

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Conduct Early Discovery (#9) is granted in accordance with the foregoing provisions of this order.

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DATED this 17th day of March, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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