Mirza et al v. Doe #1 et al

Filing 27

OPINION AND ORDER re: 18 MOTION for Discovery for Expedited Discovery. filed by Allied Medical and Diagnostic Services, LLC, Muhammad Mirza. For the foregoing reasons, Plaintiffs' Motion is GRANTED. The Clerk of Court is respectfully directed to close ECF No. 18. (Signed by Magistrate Judge Sarah L Cave on 10/6/2021) (rro)

Case 1:20-cv-09877-PGG-SLC Document 27 Filed 10/06/21 Page 1 of 20

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DR. MUHAMMAD MIRZA and ALLIED MEDICAL AND
DIAGNOSTIC SERVICES, LLC,
Plaintiffs,
CIVIL ACTION NO.: 20 Civ. 9877 (PGG) (SLC)

-v-

OPINION AND ORDER
JOHN DOE #1 a/k/a John D., a Yelp.com user, JOHN
DOE #2 a/k/a Elizabeth M., a Yelp.com user, JOHN
DOE #3 a/k/a Robert R. a Yelp.com user, JOHN DOE
#4 a/k/a Zoe C., a Yelp.com user, JOHN DOE #5 a/k/a
Caroline P., a Yelp.com user, JOHN DOE #6 a/k/a
Yelena P., a Yelp.com user, JOHN DOE #7 a/k/a Lana
W., a Yelp.com user, JOHN DOE #8 a/k/a Zin N., a
Yelp.com user, JOHN DOE #9 a/k/a Carly D., a
Yelp.com user,
Defendants.
SARAH L. CAVE, United States Magistrate Judge.
I. INTRODUCTION
Before the Court is the motion of Plaintiffs Dr. Muhammad Mirza (“Dr. Mirza”) and Allied
Medical and Diagnostic Services, LLC (“AMDS”) (together, “Plaintiffs”) pursuant to Federal Rule
of Civil Procedure 26 requesting leave to serve a third-party subpoena (the “Subpoena”) on
Yelp.com (“Yelp”) to ascertain the identities of the John Doe Defendants (the “Motion”). (ECF
Nos. 18; 19 at 1; 23 at 1). Plaintiffs argue in their supporting Memorandum of Law (the
“Memorandum”) that this discovery is necessary to “identify Defendants and prevent them from
continuing their defamatory and harmful activity” and to advance the litigation of this action.
(ECF No. 19 at 4, 14).
For the reasons that follow, Plaintiffs’ Motion is GRANTED.

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II. BACKGROUND
A.

Factual Background

Plaintiffs allege the following facts in their Complaint. (ECF No. 1; see also ECF No. 19).
Dr. Mirza is a medical doctor, board-certified in internal medicine, and licensed in New
York and New Jersey. (ECF No. 1 ¶ 4; see also ECF No. 19 at 2). Dr. Mirza “is not a public official
and not a public figure,” id., but he does own and operate the AMDS medical practice. (ECF No. 1
¶ 10; see also ECF No. 19 at 2). “As part of Dr. Mirza’s medical practice, he offers injections of
Botulinum toxin A, commonly known as ‘Botox,’ manufactured by Allergen PLC, along with
cosmetic treatments using other products.” (ECF No. 1 ¶ 14; see also ECF No. 19 at 2). Some
unsatisfied “patients who have undergone cosmetic procedures have chosen to voice [allegedly]
false and defamatory accusations on Yelp,” which the Court collectively refers to as the
“Reviews.” (ECF No. 1 ¶ 17; see also ECF No. 19 at 3).
As set forth in the Memorandum, Yelp is:
a local business review and social networking site. The site has pages devoted to
individual locations, such as restaurants, stores, and service providers, where Yelp
[users] . . . submit reviews [for] the businesses using a one to five star [sic] rating
scale. . . .Yelp[] collects name, email address, password, and zip code when a user
sign[s] up for an account. The sign-up process does not require verifying a user’s
name or address with any identity information. . . . Users on Yelp[] can use
pseudonyms . . . [and] Yelp[] does not verify the names[.] . . . Thus, it is often
impossible to know who wrote a particular review based solely on publicly
displayed information. . . [In addition,] Yelp[] does not display users’ email
addresses or other contact information for public consumption. However, Yelp[]
tracks and stores mechanical information about users’ activity, including IP
address and geolocation information. . . . Based on Plaintiffs’ and their counsel’s
prior experiences with Yelp[], Yelp[] refuses to provide this information to third
parties without a subpoena.
(ECF

No. 19

at

3–4)

(internal

citations

omitted);

Privacy

Policy,

Yelp,

https://terms.yelp.com/privacy/en_us/20200101_en_us/#Information-We-Collect-and-How2

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We-Use-It (“When you create a Yelp account, we store and use the information you provide
during that process, such as the first and last name you enter, email address, zip code, physical
address, and any other information you may provide during the account creation process, such
as a gender, phone number, or birth date.”).
On November 21, 2019, Defendant “John Doe #1,” whose Yelp pseudonym is “John D.”
and whose account is based in “Day, FL” (“Defendant #1”) wrote that Dr. Mirza is: “[p]retty
terrible, rude and he's very ugly also he's a scam and a troll artist I think he may also be autistic
and a little crazy in the head[.]” 1 (ECF No. 1 ¶ 18).
On December 26, 2019, Defendant “John Doe #2” whose Yelp pseudonym is “Elizabeth
M.” and whose account is based in “Lancaster, PA” (“Defendant #2”) also wrote a negative review
making such statements as: “Dr. Mirza was extremely unprofessional and unsanitary;” “[he]
crammed all of us in a tiny meeting room;” “Dr. Mirza's assistant . . . was extremely rude;” and
“he g[a]ve me the wrong product, [and] I paid 500$ worth of botox to maybe get 50$ worth
injected.” 2 (ECF No. 1 ¶ 25).
On January 22, 2020, Defendant “John Doe #3” whose Yelp pseudonym is “Robert R.” and
whose account is based in “Jessup, MD” (“Defendant #3”) wrote, in relevant part: “Mirza is a
hack. Works out of gym bags in some back end storage room that was sketchy and dirty. . . .

Mirza Aesthetics, John D., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york9?hrid=DGAHH0Lccny5Q6xdL25qaA&utm_campaign=www_review_share_popup&utm_medium=copy_l
ink&utm_source=(direct) (last visited Sept. 28, 2021).
2
Mirza Aesthetics, Elizabeth M., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york-6?hrid=GXEoln36Lr9RbgOBjfEfQ&utm_campaign=www_review_share_popup&utm_medium=copy_link&utm_sour
ce=(direct) (last visited Sept. 28, 2021).
1

3

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[Y]our botox is fake. Stop scamming people. And PS, fillers and other aesthetic products need
to be refrigerated, not kept in your son's basketball duffel collection.” 3 (ECF No. 1 ¶ 33).
On February 28, 2020, Defendant “John Doe #4” whose Yelp pseudonym is “Zoe C.” and
whose account is based in “Manhattan, NY” (“Defendant #4”) wrote a review claiming that Dr.
Mirza’s “filler is diluted” and that when she “[w]ent to [him] paid $400 (even tho it was
advertise[d] at $350) and within 3 weeks the filler had dissolved.” 45 (ECF No. 1 ¶ 40).
On March 20, 2020, Defendant “John Doe #5” whose Yelp pseudonym is “Caroline P.” and
whose account is based in “Lake in the Hills, IL” (“Defendant #5”) wrote that Dr. Mirza is an
“imposter of a doctor” who “is posting ads on Instagram to lure clients in for 50% Botox.” 6 (ECF
No. 1 ¶ 47).
On August 6, 2020, Defendant “John Doe #6” whose Yelp pseudonym is “Yelena P.” and
whose account is based in “New York, NY” (“Defendant #6”) wrote that Dr. Mirza is a “[p]op-up
quack doctor who will gladly botch up your face and have you pay for it.” She added that patients

Mirza Aesthetics, Robert R., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york9?hrid=N3xJVECus6hoBxRHDQmzA&utm_campaign=www_review_share_popup&utm_medium=copy_link
(last
visited
Sept. 29, 2021).
4
Botox Juvederm Doctor, Zoe C., Yelp, https://www.yelp.com/biz/botox-juvederm-doctor-newyork?hrid=pDQvIc_0pZ4LGgU_vt8DA&utm_campaign=www_review_share_popup&utm_medium=copy_link&utm_source=(di
(last
visited Sept. 29, 2021).
5
Defendant
#4
is
a
Yelp
“Elite”
member.
Zoe
C.,
Yelp,
https://www.yelp.com/user_details?userid=7n1NsVA2s7JhEuEmhQGyCw (last visited Sept. 29, 2021).
6
Mirza Aesthetics, Caroline P., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york9?hrid=lZyk8iz4r8aNO6LXTXPlNg&utm_campaign=www_review_share_popup&utm_medium=copy_link
&utm_source=(direct) (last visited Sept. 29, 2021).
3

4

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“might be getting pumped full of windex . . .So if you enjoy looking disfigured, you found your
perfect ‘doctor.’" 7 (ECF No. 1 ¶ 54).
On June 23, 2020 Defendant “John Doe #7” whose Yelp pseudonym is “Lana W.” and
whose account is based in “Bethesda, MD” (“Defendant #7”) wrote that Dr. Mirza “ is a complete
con artist [and f]rom the real reviews (the negative ones) that I have read everyone complains
about the same stuff: it's dirty, he's fast, rude, intimidates you to upsell- which is horrible because
many of his clients are insecure . . . and he dilutes his injectables” adding that “[t]hey are probably
counterfeit [and] . . . he basically does ‘pop ups’ in locations and is never anywhere to be found.” 8
(ECF No. 1 ¶ 61).
On July 23, 2020 Defendant “John Doe #8” whose Yelp pseudonym is “Zin N.” and whose
account is based in “Queens, NY” (“Defendant #8”) wrote that Dr. Mirza “is very unprofessional”
and warned prospective patients to “not let him eat your money.” 9 (ECF No. 1 ¶ 67).
Last, on August 20, 2020, Defendant “John Doe #9” whose Yelp pseudonym is “Carly D.”
and whose account is based in “San Francisco, CA” (“Defendant #9”) wrote that Dr. Mirza “does
not use full syringe and price gauges” and that “[h]e waters down his fillers and your results

Mirza Aesthetics, Yelena P., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york9?hrid=SJyIAEe7D5nwtjsC9PpQtg&utm_campaign=www_review_share_popup (last visited Sept. 29,
2021).
8
Mirza Aesthetics, Lana W., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york6?hrid=UgoMOrR0K5hGGux40RCjBQ&utm_campaign=www_review_share_popup&utm_medium=copy
_link&utm_source=(direct) (last visited Sept. 29, 2021).
9
Mirza Aesthetics, Zin N., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york9?hrid=q5bxT1zhRhKEZhTVlBsJJQ&utm_campaign=www_review_share_popup&utm_medium=copy_lin
k&utm_source=(direct) (last visited Sept. 29, 2021).
7

5

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disappear in a couple of days,” adding that he should “be held accountable for his fraudulent
practices.” 10 (ECF No. 1 ¶ 74).
Plaintiffs argue that Defendants’ statements in the Reviews are false and reputationally
damaging. First, “Dr. Mirza has never been diagnosed as autistic or with any mental health
condition.” (ECF No. 19 at 4). Rather, he “is a licensed medical doctor” (ECF No. 1 ¶ 51), who
“engages in necessary procedures to ensure a sanitary practice [and he] does not intimidate his
patients to buy more product [or] dilute the product purchased by the client [or] use counterfeit
products, but only uses authentic products.” (Id. ¶ 65). Moreover, Plaintiffs allege, while Dr.
Mirza’s medical practice does “operate out of different commercial office spaces,” they “have a
primary office location that they can be reached at, along with an office phone number and email
address” (id.), and at the various locations they “follow temperature guidelines from the
products’ companies and always have a refrigerator on site.” (Id. ¶ 37). “Plaintiffs [also allege
that they] are not engaged in the practice of theft or embezzlement.” (Id. ¶ 71). Because of the
Reviews, Plaintiffs allege that their reputation “ha[s] been and continue[s] to be substantially and
irreparably harmed,” leading to lost revenue. (Id. ¶¶ 3, 22, 29, 36, 43, 50, 57, 64, 70, 77, 80–83,
86, 88, 93, 98, 101–102).
B. Procedural History
On November 23, 2020, Plaintiffs filed the Complaint alleging claims of defamation per
se, trade libel, and tortious interference with contract and seeking damages and injunctive relief.
(ECF No. 1 at 2, 18–19). On December 7, 2020, Plaintiffs filed a letter-motion requesting leave to

Mirza Aesthetics, Carly D., Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york-6?hrid=R5xV81g48755lZxaODRMA&utm_campaign=www_review_share_popup&utm_medium=copy_link&utm_
source=(direct) (last visited Sept. 29, 2021).
10

6

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conduct expedited discovery. (ECF No. 5) (the “Letter-Motion”). In an Order dated December 9,
2020, Judge Fox noted that the Letter-Motion did not comply with the Court’s Local Civil Rules
and ordered Plaintiffs to instead submit a formal motion in accordance with Local Civil Rule
7.1(a). (ECF No. 7). On February 16, 2021, Plaintiffs filed a motion for expedited discovery (the
“First Motion”), seeking to serve third-party subpoenas on Yelp along with additional third
parties, such as Defendants’ Internet service providers (“ISP”) and email service providers. (ECF
Nos. 8; 10). Accordingly, on February 17, 2021, Judge Fox denied the Letter-Motion as moot.
(ECF No. 11).
On June 23, 2021, Judge Fox denied the First Motion without prejudice, finding that
Plaintiffs had failed to show good cause for the requested discovery (“Judge Fox’s Order”). (ECF
No. 16). Explaining the reason for the denial of the First Motion, Judge Fox noted that:
plaintiffs failed to identify: (a) “other third-party providers”; (b) what “other-party
providers” provide; and (c) information the plaintiffs seek to obtain by “issuing a
third-party subpoena on Yelp[] or other third-party providers.” The [P]laintiffs did
not provide any evidence explaining: (1) who or what “Yelp[]” is; (2) the basis for
believing that “Yelp[]” has any information they intend to seek by a third-party
subpoena, including any information that may serve to identify the defendants in
this action. . . . [Plaintiffs also] failed to explain what “Yelp[] profiles” are or the
basis for his knowledge about “Yelp[] profiles,” since [Mirza] did not identify
himself as having any relation to “Yelp[].” . . . [Finally,] [P]laintiffs failed to provide
evidentiary support for their self-serving conclusory assertion that they “are
unable to uncover the identity of Defendants without issuing a third-party
subpoena on Yelp[] or other third-party providers.”
Id. at 3–4.
Following Judge Fox’s Order, on September 16, 2021, Plaintiffs filed the Motion (ECF
No. 18), supported by the Memorandum (ECF No. 19) and declarations from Dr. Mirza (the
“Mirza Declaration” (ECF No. 20)) and Haymant Parmanand, the Digital Manager of AMDS (the
“Parmanand Declaration” (ECF No. 21)).

According to the Parmanand Declaration, Mr.
7

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Parmanand’s responsibilities as Digital Manager include creating digital content and managing
AMDS’s website, customer relations, and marketing. (Id. ¶¶ 2, 4).
On September 9, 2021, the Honorable Paul G. Gardephe scheduled an initial pretrial
conference for October 28, 2021, and on September 20, 2021 he adjourned the conference to
January 6, 2022. (ECF Nos. 17; 23). On September 21, 2021, Judge Gardephe referred the Motion
to the undersigned. (ECF No 24).
At the Court’s direction, on October 1, 2021, Plaintiffs filed a supplemental submission
setting forth a list “of similar requests for expedited discovery and the relief that was granted.”
(ECF No. 26).
C. Jurisdiction
Plaintiffs contend that the Court may exercise personal jurisdiction over the Defendants
“pursuant to 28 U.S.C. § 1332 [because] Defendants, upon information and belief, reside in the
State of New York[,] []Dr. Mirza resides in New Jersey and is the sole member and principal of”
AMDS, and the amount in controversy exceeds $75,000.00. (ECF Nos. 1 ¶¶ 4–8; 10 at 7).
Defendants’ actual place of residence has not been established conclusively; in fact, their Yelp
profiles list a variety of locations including San Francisco, CA and Bethesda, MD, among others.
(See Yelp pages cited supra notes 1–4, 6–10). Plaintiffs assert that the Defendants, none of whom
appear to be “citizens of New Jersey,” “invoke[ed] the benefits and protections” of New York “in
an attempt to cause harm within the State,” by targeting and identifying the Plaintiffs and causing
harm within New York. (ECF Nos. 1 ¶¶ 3, 5–6, 8; 10 at 11; 20 at 6). As noted in Judge Fox’s
Order:
In support of their motion, the plaintiffs submitted Mirza’s declaration in which
he states that he resides in New Jersey and is the sole member and principal of
8

Case 1:20-cv-09877-PGG-SLC Document 27 Filed 10/06/21 Page 9 of 20

AMDS, and: (i) “[t]he persons making these posts are believed to be the
defendants in the above-captioned action”; (ii) “[u]pon information and belief,
and according to their Yelp[] profiles, none of the Defendants are citizens of New
Jersey”; (iii) “[a]ll of the Defendants posted their comments on the Yelp pages that
provide New York locations for my business”; and (iv) each defendant under a
particular user name, “John D.,” “Elizabeth M.,” “Robert R.,” “Zoe C.,” “Caroline
P.,” “Yelena P.,” “Lana W.,” “Zin N.” and “Carly D.,” “directed the authoring of a
harassing and defamatory user review of Plaintiffs on [Y]elp.”
(ECF No. 16 at 2).
III. DISCUSSION
A.

Legal Standard

Although generally under Rule 26(d)(1), “[a] party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f),” an exception may be made for “a
proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these
rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). Pursuant to that exception,
“[c]ourts in this district have applied a ‘flexible standard of reasonableness and good cause’ in
determining whether to grant a party's expedited discovery request.” Digital Sin, Inc. v. Does 1–
176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012) (citing Ayyash v. Bank Al–Madina, 233 F.R.D. 325, 326–
27 (S.D.N.Y. 2005); Stern v. Cosby, 246 F.R.D. 453, 457 (S.D.N.Y. 2007); see 8A Charles Alan Wright
& Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 2046.1 (3d ed. 2011) (“Although [Rule 26(d) ]
does not say so, it is implicit that some showing of good cause should be made to justify such an
order, and courts presented with requests for immediate discovery have frequently treated the
question whether to authorize early discovery as governed by a good cause standard.”). This
“flexible standard of reasonableness and good cause” also requires the application of
“particularly careful scrutiny since [P]laintiff[s] not only seek[] expedition, but also move[] on an

9

Case 1:20-cv-09877-PGG-SLC Document 27 Filed 10/06/21 Page 10 of 20

ex parte basis.”

Ayyash, 233 F.R.D. at 327.

Careful scrutiny entails an analysis of the

“substantiality of [Plaintiffs’] claims.” Id. Moreover,
[c]ases evaluating subpoenas seeking identifying information from [third-party
internet service providers] regarding subscribers who are parties to litigation have
considered a variety of factors to weigh the need for disclosure against First
Amendment interests. These factors include: (1) a concrete showing of a prima
facie claim of actionable harm; (2) specificity of the discovery request; (3) the
absence of alternative means to obtain the subpoenaed information; (4) a central
need for the subpoenaed information to advance the claim, and (5) the party’s
expectation of privacy.
Sony Music Ent. Inc. v. Does 1–40, 326 F. Supp. 2d 556, 564–65 (S.D.N.Y. 2004) (internal citations
omitted).
B.

Application

The Court finds that Plaintiffs have satisfied each of the factors showing that good cause
exists to issue a subpoena for third-party identifying information. See generally Sony Music, 326
F. Supp. 2d 556; Ayyash, 233 F.R.D. 325.
1. Concrete showing of a prima facie claim of actionable harm
The Court finds that Plaintiffs have made a “concrete showing of a prima facie claim” of
defamation sufficient to provide good cause to allow expedited discovery. 11 Sony Music, 326 F.
Supp. 2d at 565. The Court makes that finding without prejudice to any arguments Yelp may seek
to advance in opposition to the Subpoena, or any arguments that Defendants may make in a
motion to dismiss the Complaint.

The Complaint asserts claims for defamation, trade libel, and tortious interference with contract. (ECF
No. 1 at 2). “[B]ecause ‘libel is a species of defamation,’ Kavanagh v. Zwilling, 997 F. Supp. 2d 241, 247
n.6 (S.D.N.Y.), aff’d, 578 F. App’x 24 (2d Cir. 2014) (applying New York law),” the Court need not separately
address trade libel.
11

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The Court must first determine which state’s law governs the claims in this case. Because
“the locus of the tort is where the plaintiff suffered injury, often the Court can resolve the choice
of law analysis simply by observing the state of plaintiff's domicile and presuming that the
publication injured him in that state,” however, in cases involving multiple states like this one,
the “locus of the tort factor begs, rather than answers, the ultimate choice of law question.”
Condit v. Dunne, 317 F.Supp.2d 344, 353 (S.D.N.Y.2004). In fact, “in cases where a defamatory
statement is published nationally, there is only a ‘presumptive’ rule that the law of plaintiff's
domicile applies, which ‘does not hold true . . . if “with respect to the particular issue, some other
state has a more significant relationship to the issue or the parties.”’” Adelson v. Harris, 973 F.
Supp. 2d 467, 477 (S.D.N.Y. 2013), aff'd, 876 F.3d 413 (2d Cir. 2017) (quoting Davis v. CostaGavras, 580 F. Supp. 1082, 1091 (S.D.N.Y. 1984)).
The Court finds that New York has a more significant relationship to the issue and to the
parties than New Jersey. Although Dr. Mirza resides in New Jersey, AMDS has its “principal place
of business in the State of New York” and Plaintiffs allege that the harms were directed toward
their business in New York State. (ECF No. 1¶¶ 4–5, 8). At this stage of the proceedings, the
Court will apply New York. 12
The elements of a claim for tortious interference with a contract “are (1) ‘the existence
of a valid contract between the plaintiff and a third party’; (2) the ‘defendant's knowledge of the

In any event, under New Jersey law, the elements of a defamation claim are almost identical to those
under New York law. “To prove defamation [in New Jersey], a plaintiff must establish, in addition to
damages, that the defendant (1) ‘made a defamatory statement of fact’; (2) ‘concerning the plaintiff’; (3)
‘which was false’; (4) which was ‘communicated to a person or persons other than the plaintiff’; (5) with
the requisite level of fault.” Catalanello v. Kramer, 18 F. Supp. 3d 504, 513 (S.D.N.Y. 2014) (quoting Singer
v. Beach Trading Co., Inc., 876 A.2d 885, 894 (N.J. Super. Ct. App. Div. 2005)).
12

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contract’; (3) the ‘defendant's intentional procurement of the third-party's breach of the contract
without justification’; (4) ‘actual breach of the contract’; and (5) ‘damages resulting therefrom.’”
Zohar CDO 2003-1, LTD., v. Patriarch Partners, LLC, No. 17 Civ. 307 (PKC), 2021 WL 4460547, at
*19 (S.D.N.Y. Sept. 29, 2021) (quoting Kirch v. Liberty Media Corp., 449 F.3d 388, 401 (2d Cir.
2006)). Here, Plaintiffs have stated in a conclusory manner that they “had existing contracts with
[their] patients” and that “Defendants knew of [such] contracts,” but the Complaint does not
state the exact terms of those contracts that Defendants allegedly breached through their
actions. (ECF No. 1 ¶¶ 97–98). For these reasons, Plaintiffs have not made a prima facie showing
of a valid claim of tortious interference with contract in this case.
In New York, the elements of a defamation claim are the existence of: “1) a false and
defamatory statement of and concerning the plaintiff; 2) publication by defendant of such a
statement to a third party; 3) fault on part of the defendant; and 4) injury to plaintiff.” Idema v.
Wager, 120 F. Supp. 2d 361, 365 (S.D.N.Y. 2000), aff’d, 29 F. App’x 676 (2d Cir. 2002); (ECF No. 19
at 12). Here, Plaintiffs allege that the Reviews attributed to Defendants are public, intentional,
and insulting statements about Plaintiffs and their business practices that have injured their
reputation. (ECF No. 1 ¶¶ 3, 18, 22, 25, 29, 32, 36, 39, 43, 46, 50, 53, 57, 60, 64, 66, 70, 73, 77,
80–83, 85–86, 88, 93, 101–102). See Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 177 (2d Cir.
2000) (“The gravam[e]n of an action alleging defamation is an injury to reputation.”).
Whether the Reviews contain statements of protected opinion, fact, or both, however, is
less clear. Indeed, “New York courts have consistently protected statements made in online
forums as statements of opinion rather than fact.” Ganske v. Mensch, No. 19 Civ. 6943 (RA),
2020 WL 4890423, at *552 (S.D.N.Y. Aug. 20, 2020) (quoting Bellavia Blatt & Crossett, P.C. v. Kel
12

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& Partners LLC, 151 F. Supp. 3d 287, 295 (E.D.N.Y. 2015)). In addition, the First Amendment may
provide some, although not “absolute protection,” Sony Music, 326 F. Supp. 2d at 562 (“It is wellsettled that the First Amendment’s protection extends to the Internet.”).
Whether the Reviews are protected by New York law, the First Amendment, or otherwise,
is not for the Court to decide at this stage. If Plaintiffs’ assertion that Defendants’ Reviews are
factually false in addition to merely insulting statements of protected opinion, then all of the
elements for a defamation claim would be met, and the statements may rise to the level for
which the law provides a remedy. See Celle, 209 F.3d at 178 (clarifying that “[w]hether a
particular statement constitutes fact or opinion is a question of law” and “[i]f the [defamatory]
statement reasonably would be understood as implying undisclosed facts then it is not protected
opinion”) (citations omitted). Moreover, “if a statement is defamatory per se,” as Plaintiffs claim
here, “injury is assumed.” Id. at 179. Thus, Plaintiffs have made a concrete showing of a prima
facie claim of defamation. See TransUnion LLC v. Ramirez, ___ U.S. ___, 141 S. Ct. 2190, 2204
(2021) (noting that “[c]hief among” actionable harms “are injuries with a close relationship to
harms traditionally recognized as providing a basis for lawsuits in American courts. Those
include, for example, reputational harms[.]”) (internal citations omitted).
The circumstances here are distinguishable from a recent case in which another court in
this District denied the same Plaintiffs’ motion to compel Yelp to provide the name and address
of a John Doe defendant because Plaintiffs did not make “a sufficient showing of prima facie
defamation.” See Mirza v. Yelp, Inc., 21-MC-621 (S.D.N.Y. Aug. 25, 2021) (ECF No. 23 at 1)
(“August 25 Order”). The Yelp review at issue in that case stated: “Worst experience I’ve ever
had! Woke up looking like a monster!!! Cheap product and he’s absolutely not experienced nor
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does he care!!!!!” Id. The court found that that review contained a “‘loose, figurative or
hyperbolic tone’ that ‘suggest[s] to a reasonable reader that the author was merely expressing
his opinion based on a negative business interaction with [a] plaintiff[],’ [making] that statement
[]one of opinion.’” Id. at 4 (quoting Torati v. Hodak, 47 N.Y.S.3d 288, 290 (1st Dep’t 2017)). Here,
however, Defendants’ Reviews are more numerous, longer, and more importantly, appear to
contain several factual statements in addition to statements of opinion or hyperbole. For
example, Defendant #2 wrote that Dr. Mirza “g[a]ve [her] the wrong product, [and she] paid 500$
worth of [B]otox to maybe get 50$ worth injected.” (ECF No. 1 ¶ 25). This is a statement of fact,
which Plaintiffs alleged in their Complaint was false. (Id. ¶ 30 (alleging that Plaintiffs “always
ensure that the correct product is used and [it is] the amount of product that is paid for”)).
Defendant #3 wrote that Dr. Mirza’s “[B]otox is fake” and implied that Plaintiffs’ practice is to
keep products requiring refrigeration in “duffel” bags. (Id. ¶ 33). Plaintiffs challenge this
statement as false, explaining that they “follow temperature guidelines from the products’
companies and always have a refrigerator on site.” (Id. ¶ 37). Defendant #4 stated that Dr.
Mirza’s “filler is diluted” and that Defendant #4 “[w]ent to [him and] paid $400 (even tho[ugh]
the service] was advertise[d] at $350).”

(Id. ¶ 40).

In response, Plaintiffs contend that

Defendants were “fully informed of the price of their services before payment [wa]s due.” (Id.
¶ 44). Defendant #5 wrote that Dr. Mirza “lure[s] clients in for 50% Botox,” and Defendant #9
also alleged that Dr. Mirza “waters down his fillers.” (Id. ¶¶ 47, 74). Plaintiffs allege that this is
factually untrue because Plaintiffs do not “dilute the product purchased by the client [or] use
counterfeit products.” (Id. ¶ 65). In addition, the August 25 Order noted that “when the Court
authorized expedited issuance of the Yelp subpoena” in that case, it “did not address whether
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Plaintiffs had stated a prima facie claim.” August 25 Order at 5. Here, based on Plaintiffs’
submission, the Court has been able to evaluate whether Plaintiffs have stated a prima facie
defamation claim. For these reasons, the Court finds that the August 25 Order does not preclude
issuance of the Subpoena.
2. Specificity of the discovery request
The Court finds the level of specificity in the Subpoena to be sufficient. In accordance
with Judge Fox’s Order noting that “[P]laintiffs do not specify in their moving papers that they
seek leave to serve subpoenas on third parties, [but] it appears that [P]laintiffs seek leave to serve
a third-party subpoena on ‘Yelp[] or other third-party providers,’” Plaintiffs now have identified:
(i) the exact third party on whom they would like for the court to serve the Subpoena, (ii) what
they mean by “third party providers,” and (iii) what exactly they hope to access. (ECF No. 16 at
3). The third party is Yelp, there are no further “third party providers,” and Plaintiffs seek access
to “information and/or documents in [Yelp’s] possession, custody or control which positively
identify Defendants.” (ECF No. 19 at 4). In particular, Plaintiffs seek “(1) email address, (2) IP
addresses, (3) mailing address, and (4) [the] full name[s] of each Defendant from Yelp.” (Id. at
12).
3. The absence of alternative means to obtain the information
Plaintiffs assert that they “are unable to uncover the identity of Defendants without
issuing a third-party subpoena on Yelp.” (ECF No. 19 at 10). Plaintiffs argue that “[c]ourts . . .
have found ‘good cause’ for expedited discovery to determine the identity of John Doe
defendants where the plaintiff has stated a prima facie case and is unable to identify the
defendants without a court-ordered subpoena.” (Id. (citing adMarketplace, Inc. v. Tee Support,
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Inc., No. 13 Civ. 5635 (LGS), 2013 WL 4838854, at *2 (S.D.N.Y. Sept. 11, 2013)). The Court accepts
Plaintiffs’ representation that they have engaged in earnest “attempt[s] to search their own
business records for the identities of” Defendants. (ECF No. 19 at 11). Because those attempts
have been unsuccessful, Yelp displays only Defendants’ first names and last initials, and even
these may be false (except in the case of “Elite” user, Defendant #4), the Court accepts that the
Subpoena may be the only tool at Plaintiffs’ disposal to determine Defendants’ identities. Where
there is “no other way of obtaining the identities of the alleged infringers” courts in this District
have found discovery to be permissible, and “expedited discovery []necessary to prevent the
requested data from being lost forever as part of routine deletions by the ISPs.” Digital Sin, 279
F.R.D. at 241–42.
4. A central need for the information to advance the claim
“Courts in this district routinely find ‘good cause’ for expedited discovery to determine
the identity of John Doe defendants where a Plaintiff is able to make out a prima facie case and
is otherwise unable to identify the Defendants without a court-ordered subpoena,” as is the case
here. Strike 3 Holdings, LLC v. Doe, 329 F.R.D. 518, 521 n.1 (S.D.N.Y. 2019) (citing John Wiley &
Sons, Inc. v. John Does 1-22, Nos. 12 Civ. 4231 (PAC), 12 Civ. 4232 (PAC), 12 Civ. 4730 (PAC), 2013
WL 1091315, at *5 (S.D.N.Y. Mar. 15, 2013); John Wiley & Sons, Inc. v. Doe Nos. 1–30, 284 F.R.D.
185, 189 (S.D.N.Y. 2012); Next Phase Distrib., Inc. v. John Does 1–27, 284 F.R.D. 165, 171 (S.D.N.Y.
2012); Malibu Media, LLC v. John Does 1–11, No. 12 Civ. 3810 (ER), 2013 WL 3732839, at *2
(S.D.N.Y. July 16, 2013)). To recover for any damages, Plaintiffs must know who the Defendants
actually are and serve process. “Because [Plaintiffs] ha[ve] alleged a prima facie case . . . and

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[they] cannot identify John Doe[s] without a court-ordered subpoena, the Court agrees that there
is good cause to allow for early discovery.” Next Phase Distrib., 284 F.R.D. at 171–72.
Moreover, knowledge of the identities of the Defendants “is critical for establishing that
personal jurisdiction is proper in this Court.” Digital Sin, 279 F.R.D. at 241 n.3 (citing Digiprotect
USA Corp. v. Does 1–266, 2011 WL 1466073, at *34 (S.D.N.Y. Apr. 13, 2011)). While the Plaintiffs
noted in their Complaint that “upon information and belief, [Defendants] are residents of the
State of New York,” this is not yet certain, and indeed is contradicted by the locations Defendants
listed on Yelp. (ECF No. 1 ¶ 8); see Yelp pages cited supra notes 1–4, 6–10. Moreover, while
some names and locations are visible on Yelp, and the website “collects name, email address,
password, and zip code when a user sign[s] up for an account,” “not everyone uses their real
name or location when posting” nor are they required to do so unless they are an “Elite” Yelp
member. 13

(ECF No. 21 ¶¶ 6, 9, 14); Do I need to use my real name on Yelp?, Yelp,

https://www.yelp-support.com/article/Do-I-need-to-use-my-real-name-on-Yelp?l=en_US

(last

visited Sept. 29, 2021) (“[W]hile we encourage Yelp members to use their real names, it isn't a
requirement. Yelpers who choose not to use their real names aren't eligible for the Yelp Elite
Squad.”). Thus, until the identity of the Defendants is known, the Court cannot confirm that
diversity jurisdiction exists under 28 U.S.C. § 1332. Should discovery yield information revealing
that this Court lacks jurisdiction, “the Court will of course reassess the issue of personal
jurisdiction.” Digital Sin, 279 F.R.D. at 241 n.3.

Plaintiffs alleged that “none of the Defendants are ‘Elite’ users” (ECF No. 21 ¶ 13), but Defendant #4 is
an Elite Yelp user. (See supra note 5).
13

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5. The parties’ expectation of privacy
Reviewers on anonymous rating websites can reasonably expect some degree of privacy.
As noted above, “[t]he Supreme Court has recognized that the First Amendment protects
anonymous speech,” including speech on the Internet. Sony Music, 326 F. Supp. 2d at 562 (citing
Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182 (1999)).
However, “even where [parties] assert ‘sensitive and personal privacy interests, courts
have denied [their] motion[] to proceed anonymously where they “do not assert that the
disclosure of their names would subject them to retaliatory physical or mental harm.”’” Taylor
v. Doe, No. 20 Civ. 03398 (MKV), 2021 WL 2940919, at *5 (quoting Doe v. Gong Xi Fa Cai, Inc.,
No. 19 Civ. 2678 (RA), 2019 WL 3034793, at *2 (S.D.N.Y. July 10, 2019)). In this case, as in Sony
Music, there is no reason to believe that Defendants would be subject to either retaliatory
physical harm, or retaliatory mental harm (beyond the foreseeable stress of being a named
defendant in a lawsuit), should their identities be revealed. See Sony Music, 326 F. Supp. 2d at
564 (“[T]he First Amendment does not bar disclosure of the Doe defendants' identities.”); Doe v.
Townes, No. 19 Civ. 8034 (ALC) (OTW), 2020 WL 2395159, at *4 (S.D.N.Y. May 12, 2020) (“The
risks must be more than speculative claims of physical or mental harms.”).
In fact, Defendants would have been on constructive notice that anyone who uses Yelp
may be sued for leaving insulting reviews. Yelp has a web page devoted to this topic, advising
users that “[i]f you, as a reviewer, have been threatened with a lawsuit, we urge you to check
your facts and make sure you can still stand behind your review. If not, we advise you to remove
it. Please contact an attorney if you are actually sued.” Support Center Legal Questions, Yelp,

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https://www.yelp-support.com/article/Do-Yelpers-ever-get-sued-for-posting-negativereviews?l=en_US (last visited Sept. 29, 2021). In addition, Yelp’s Privacy Policy states:
We may investigate and disclose information from or about you if we have a good
faith belief that such investigation or disclosure: (a) is reasonably necessary to
comply with legal or law enforcement processes, such as a search warrant,
subpoena, statute, judicial proceeding, or other legal process or law enforcement
request; (b) is helpful to prevent, investigate, or identify possible wrongdoing in
connection with the Service; or (c) protects our rights, reputation, property, or
that of our users, affiliates, or the public, such as disclosures in connection with
Yelp’s Consumer Alerts program.
Privacy Policy, Yelp, https://terms.yelp.com/privacy/en_us/20200101_en_us/#Information-WeCollect-and-How-We-Use-It (last visited Sept. 29, 2021) (emphasis added). Thus, Yelp users have
implicitly agreed to the release of their personal data if it is required by a court order. 14
IV.CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion is GRANTED.

The Clerk of Court is

respectfully directed to close ECF No. 18.

Dated:

New York, New York
October 6, 2021
SO ORDERED.

The Court notes, however, that Yelp users may also receive contrary messages from Yelp. At some time
since August 25, 2021, Yelp created a pop-up notification on Dr. Mirza’s “Mirza Aesthetics” and “Botox
Juvederm Doctor” pages entitled “Consumer Alert: Questionable Legal Threats.” The notification warns
that “[t]his business may have tried to abuse the legal system in an effort to stifle free speech, for example
through legal threats or contractual gag clauses,” and reminds “reviewers who share their experiences”
that they “have a First Amendment right to express their opinions on Yelp.” Botox Juvederm Doctor, Yelp,
https://www.yelp.com/biz/botox-juvederm-doctor-new-york?hrid=pDQvIc_0pZ4LGgU_vt8DA&utm_campaign=www_review_share_popup&utm_medium=copy_link&utm_source=(di
(last
visited Oct. 6, 2021); Mirza Aesthetics, Yelp, https://www.yelp.com/biz/mirza-aesthetics-new-york6?osq=Mirza+Aesthetics (last visited Oct. 6, 2021). The notification links to the August 25 Order.
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_________________________
SARAH L. CAVE
United States Magistrate Judge

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