Cvent, Inc. v. Eventbrite, Inc. et al

Filing 12

Memorandum in Support re 11 MOTION to Expedite Discovery Concerning Identity of Defendants Doe 1-10 filed by Cvent, Inc.. (Garcia, Oliver)

Cvent, Inc. v. Eventbrite, Inc. et al

Doc. 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division
CVENT,INC.
Plaintiff,
V.

EVENTBRITE,INC.
and DOES 1-10, individuals and/or business entities of unknown nature,

) ) ) ) ) ) Civil Action No. ) ) ) ) )

1 : 10-cv-48 1

(LMB/IDD)

)
Defendants. ) )

PLAINTIFF CVENT,INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR EXPEDITED DISCOVERY CONCERNING IDENTITY OF DEFENDANTS DOE 1-10
Plaintiff Cvent, Inc. ("Cvent"), by counsel, respectfully requests that it be granted
immediate, extremely limited discovery to enable it to identit, the Defendants currently designated as "Does l-10," so that those Defendants may be made parties to this action in their

own mmes and served with a copy of the Complaint and Plaintiff Cvent's pending Motion for Preliminary Injunction. The relief Plaintiff seeks from the Court is the authorization to issue two
one-item requests for the production of documents.

ARGUMENT
Plaintiff Cvent has alleged a classic case of intellectual property theft,
accomplished by modern means over the internet. Plaintiff will not restate here its allegations,

which are the subject of pending Motions for a Temporary Restraining Order and Preliminary

Dockets.Justia.com

Injunction, an accompanying Memorandum and three Declarations. In essence, Cvent has
alleged that Defendant Eventbrite, acting in concert with other "Doe" Defendants whose actual

identities are presently unknown, schemed to use automated "web scraping" techniques to copy
valuable proprietary content from thousands of pages of Cventos cvent.com website and to

redistribute that content on Eventbrite's eventbrite.com website in violation of Federal and

Virginia Law. Plaintiff Cvent seeks immediate, extremely limited discovery of named Defendant
Eventbrite and of a third-party computer hosting provider so that it may identify the Doe Defendants. Such discovery will enable Defendants currently designated as "Does 1-l0" to be
made parties to this action in their own names., and

will allow Cvent to serve them with a copy

of the Complaint and Plaintiff Cvent's pending Motion for a Preliminary Injunction, affording
them the opportunity to respond. Second, identiffing the Doe defendants will allow Cvent to

notiff them

as soon as possible of the pendency of the action and request that a

"litigation hold"

be placed on potentially discoverable materials

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a

particularly important step in a case such as

this one, which involves the use of computers and electronically stored information which may
be subject to inadvertent or deliberate deletion.

I.

COURTS REGULARLY ALLOW EXPEDITED DISCOVERY TO LEARN THE IDENTITY OF "DOE'' DEFENDANTS.
As an initial matter, this Court possesses the power to order early, expeditied

discovery into the identity of unknown "Doe" defendants. See, e.g., Arista Records LLC v. Does

l-4, No. 1:07-CV-1115,2007 WL 4178641 (W.D. Mich. Nov. 20, 2007), at *l (citing

cases);

Fed. R. Civ. P. 26(d) (allowing for expedited discovery "by court order"). Courts regularly order

such discovery in intemet-based intellectual property infringement cases, especially where (as

here) the real identity of an alleged infringer is unknown, but the IP address used by that

infringer is known. See, e.g., Capitol Records. Inc. v. Doe, No. 07-CV-1570-JM(POR) (S.D.
Cal. Aug. 24,2007); Arista Records ,2007 WL 41786 47 at * I . Indeed, one District Court,

collecting and analyzing the cases, has concluded that "discovery to allow the [identification] of
Does defendants is routine." Laface Records. LLC v. Atlantic Recording Corp., Civ. A No. 07-

187,2007 WL 4286189 (W.D. Mich. $ept.27,2007),at*2.

II.

CVENT'S PROPOSED DISCOVERY IS LIMITED AND NARROWLY. TAILORED TO IDENTIFY THE DOE DEFENDANTS.
Plaintiff Cvent has proposed two discovery requests to enable it to identi$, the

Doe defendants; each is narrowly-tailored to achieve that objective. First, Cvent seeks to issue a
Request for Production to named Defendant Eventbrite, Inc. ("Eventbrite") for "documents

sufficient to identify" all those involved in the conception, planning, and creation of Eventbrite's
"venues directory" which, Plaintiff contends, is a product of the Defendants' scheme to

unlawfully "scrape" proprietary content from Cvent's website and to redistribute that content on
Eventbrite's website. This Request for Production will allow Cvent to identiff the other
participants in the scheme via discovery to the one currently identifiable participant-Eventbrite.
Second, Plaintiff seeks a subpoena duces tecum to Liquid Web, Inc., a Lansing, Michigan-based

computer hosting provider, for "documents sufficient to identiff" the user of Internet Protocol

(IP) address 67.225.179.162 during the relevant period, a computer IP address which has been implicated by Cvent in a series of unlawful mass downloads of thousands of web pages of Cvent
content

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content which was then redistributed on defendant Eventbrite's website. See generally

Cvent's Memorandum in Support of Points and Authorities in Support of its Motion for a
Temporary Restraining Order and Preliminary Injunction ("Mem. In Support") at 6-12. Copies

of the proposed discovery requests are attached to the Proposed Order submitted with this Motion.

CONCLUSION
Plaintiff Cvent has set out prima facle claims for relief under, inter alia, the Copyright Act 17 U.S.C. $ 101 e/ seq.), the Lanham Act (15 U.S.C. $ 1125(a)), and the
Computer Fraud and Abuse Act (18 U.S.C. $ 1030). See generallyMem in Support at16-23. It
has proposed narrow, targeted discovery requests to leam the true identities of Does 1-10, and has no practical means to obtain the information otherwise. The information is critical to this case, serving both to give the Does notice of the Complaint and pending Motions, and to prevent loss of potentially discoverable information, and it violates no privacy interest. In such

circumstances, issuance of the requested expeditied discovery is, Cvent submits, appropriate. Cf.

Arista Records LLC v. John Does 1-19, 551 F.Supp.2d 1,6 (D.D.C, 2008) (granting discovery
and noting "the overwhelming number of cases" in which courts permiued expedited discovery

in Doe cases; case at bar presented both privacy statute and First Amendment implications);
Fonovisa. Inc. v. Does 1-9, No. 07-CV-1515, 2008 WL 919701(W.D. Pa. April 3, 2008)

(finding "good cause" for expedited discovery in Doe case with privacy statute and First
Amendment implications); Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556,565-67

(finding "good cause" in Doe subpoena case with First Amendment implications). Plaintiff
Cvent therefore respectfully requests that the Court grant its Motion.

Respectfully submitted, AEGIS LAW GROUP LLP

By:

/s/ Oliver Garcia Paul C. Rauser (application for admissionpro hoc vice pending) Oliver Garcia (Va Bar No. 70087) Thomas Shakow (Va Bar No. 70291) (application for admission pending) 901 F Street, N.W., Suite 500 Washington, D.C. 20004 T el (202) 7 37 -3 500 lF ax: (202) 7 37 -3330 email : ogarcia@ae gislawgroup.com
Attorneys

for

Cvent, Inc.

Dated: May 11,2010

CERTIFICATE OF SERVICE I hereby certit/ that on this l lth day of May,20l0,I electronically filed the foregoing with the Clerk of Court using the CIWECF system.

I further certify that on this llth day of May,20l0,I caused a true and complete of the foregoing to be served via facsimile and first-class mail, postage prepaid on the copy following:
Eventbrite, Inc. 410 Townsend Street San Francisco, CA 94107

lsl Oliver Garcia