Advanced Career Technologies, Inc. v. John Does 1-10
Filing
12
ORDER granting 11 Plaintiffs Amended Motion for Expedited Discovery, by Magistrate Judge Kristen L. Mix on 3/11/2013.(ervsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00304-WJM-KLM
ADVANCED CAREER TECHNOLOGIES, INC., a Delaware corporation,
Plaintiff,
v.
JOHN DOES 1-10, all whose true names are unknown,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Amended Motion for Expedited
Discovery [Docket No. 11; Filed March 7, 2013] (the “Motion”).
In the Complaint [#1], Plaintiff alleges that John Does 1-10, who are only identified
by their Internet Protocol (“IP”) addresses, violated the Lanham Act and the Colorado
Consumer Protection Act and committed trade libel and commercial disparagement through
postings on a weblog website called Random Convergence, owned by Blogspot, which in
turn is owned and operated by Google, Inc. In the Motion [#11], Plaintiff seeks leave to
serve third party subpoenas pursuant to Fed. R. Civ. P. 45 for the sole purpose of obtaining
personally identifiable information.
Pursuant to Fed. R. Civ. P. 26(d), discovery before the Rule 26(f) conference is
allowed if authorized by court order. “In this district, courts have permitted such expedited
discovery upon a showing of good cause.” Liberty Media Holdings, LLC v. Colo. Members
-1-
of Swarm, No. 11-cv-01170-WJM-KMT, 2011 WL 1812554, at *1 (D. Colo. May 12, 2011)
(citations omitted). Good cause to permit discovery before the Rule 26(f) conference
“frequently exists in cases involving claims of infringement and unfair competition.” PodNers, LLC v. Northern Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675, 676 (D.
Colo. 2002) (citation omitted); see also Arista Records LLC v. Does 1-9, No. 07-cv-00628EWN-MEH (D. Colo. Apr. 4, 2007) (permitting issuance of subpoenas on third party ISPs
for purpose of ascertaining identity of Doe defendants). Thus, on a showing of good cause,
the Court may authorize expedited, limited discovery “narrowly tailored to seek information
necessary to support expedited or preliminary relief.” Avaya, Inc. v. Acumen Telecom
Corp., No. 10-cv-03075-CMA-BNB, 2011 WL 9293, at *2 (D. Colo. Jan. 3, 2011).
A review of the Motion indicates that there is no other feasible method for Plaintiff
to obtain the identity of John Does 1-10 other than through service of third party subpoenas
prior to the commencement of discovery in this matter. This case is similar to Arista
Records LLC, and to Liberty Media Holdings, LLC. Like the defendants in Arista Records
LLC and Liberty Media Holdings, LLC, “Defendants here have engaged in anonymous
online behavior, which will likely remain anonymous unless Plaintiff is able to ascertain their
identities.” Liberty Media Holdings, LLC, 2011 WL 1812554, at *2. The Court thus finds
that good cause exists to permit Plaintiff to serve subpoenas on third parties with the
purpose of discovering the Doe Defendants’ identities. Accordingly,
IT IS HEREBY ORDERED that the Motion [#11] is GRANTED as follows:
1.
Plaintiff may serve third party subpoenas pursuant to Fed. R. Civ. P. 45 on
Google, Inc. and/or Mr. Dan Drasen, operator and moderator of Random
Convergence blog, for the limited purpose of ascertaining the ten Doe
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Defendants’ personally identifiable information.
2.
The subpoenas shall be limited to providing Plaintiff with the true name,
address, telephone number, e-mail address, and Media Access Control
address of each of the ten Doe Defendants as identified in the Motion [#11]
by the IP addresses from which they posted and edited posts about Plaintiff
and its employees.
3.
Plaintiff shall also serve a copy of this Order with the subpoena. The
subpoenaed third parties shall notify each Doe Defendant that his or her
identity has been subpoenaed by Plaintiff.
4.
Plaintiff may only use the information disclosed in response to the subpoena
for the purpose of protecting and enforcing its rights as set forth in the
Complaint [#1].
The Court warns Plaintiff that improper use of the
information obtained by the subpoena may result in sanctions. Nothing set
forth herein abrogates the protections afforded to Defendants under Fed. R.
Civ. P. 45(c).
Dated: March 11, 2013
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