National Products, Inc. v. Does 1-5

Filing 6

ORDER granting Plaintiff's 3 Motion to expedite discovery, by Judge Richard A Jones. (PM)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NATIONAL PRODUCTS INC,

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Plaintiff,

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ORDER

v.

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CASE NO. C17-760 RAJ

JOHN DOES 1-5, one doing business
as ToGames, one using tradename
Cimiva,

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Defendants.

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This matter comes before the Court on Plaintiff National Products, Inc.’s (“NPI”)

19 Ex Parte Motion for Expedited Discovery. Dkt. # 3. For the reasons that follow, the
20 Court GRANTS Plaintiff’s Motion.
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Fed. R. Civ. P. 26(d) provides that absent a court order or other authorization, “[a]

22 party may not seek discovery from any source before the parties have conferred as
23 required by Rule 26(f).” This includes non-parties as well as parties and therefore
24 encompasses subpoenas on non-parties. See Deuss v. Siso, No. 14-CV-0071025 YGR(JSC), 2014 WL 4275715, at *4 (N.D. Cal. Aug. 29, 2014) (quoting Villegas v.
26 United States, No. 12–0001, 2012 WL 1801735, at *8 (E.D. Wash. May 16, 2012)).
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ORDER- 1

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Courts have applied a “good cause” standard in evaluating requests for early

2 discovery. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D.
3 Cal. 2002). “Good cause exists ‘where the need for expedited discovery, in consideration
4 of the administration of justice, outweighs the prejudice to the responding party.’” In re
5 Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008)
6 (quoting id.). In the context of determining whether there is good cause to permit
7 expedited discovery to identify anonymous internet defendants, courts have considered
8 whether:
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(1) the plaintiff can identify the missing party with sufficient specificity such
that the Court can determine that defendant is a real person or entity who
could be sued in federal court; (2) the plaintiff has identified all previous
steps taken to locate the elusive defendant; (3) the plaintiff’s suit against
defendant could withstand a motion to dismiss; and (4) the plaintiff has
demonstrated that there is a reasonable likelihood of being able to identify
the defendant through discovery such that service of process would be
possible.

15 Third Degree Films, Inc. v. Does 1-131, 280 F.R.D. 493, 499 (D. Ariz. 2012) (quoting
16 New Sensations, Inc. v. Does 1-1,474, No. C11-2770 MEJ, 2011 WL 4407222 at *1
17 (N.D. Cal. Sept. 22, 2011)); see also Columbia Ins. Co. v. Seescandy.com, 185 F.R.D.
18 573, 578-80 (N.D. Cal. 1999).
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The Court finds that these factors have been met here and that Plaintiff has shown

20 good cause. Plaintiff has identified the Defendants by their tradenames and attempted,
21 unsuccessfully, to ascertain their underlying identities. Plaintiff’s proposed mode of
22 expedited discovery is likely to reveal the identities behind Cimiva and ToGames. See
23 Dkt. # 3 at 2. Moreover, Plaintiff’s Complaint states a prima facie cause of action for
24 patent, trademark, and trade dress infringement. See, generally, Dkt. # 1 (Complaint).
The Court GRANTS Plaintiff’s motion for expedited discovery. Dkt. # 3.
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26 Plaintiff may subpoena the relevant third-party retailers pursuant to Federal Rule of Civil
27 Procedure 45. The affected third-parties shall have thirty (30) days from the date of

ORDER- 2

1 service of the subpoena to object to the subpoena pursuant to Federal Rule of Civil
2 Procedure 45(d)(2)(B). The affected third-parties shall not disclose Defendants’
3 identifying information during the 30-day period or if a timely objection is served unless
4 and until the Court orders it to do so. If an objection is served, the third-party shall
5 preserve any material responsive to the subpoena for a period of no less than ninety (90)
6 days in order to allow Plaintiff to move for an order compelling production under Federal
7 Rule of Civil Procedure 45(d)(2)(B)(i). If no objection is served, the third-party shall
8 comply with the subpoena within ten (10) days.
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Dated this 23rd day of May, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER- 3