SolarBridge Technologies, Inc. v. Doe, No. 5:2010cv03769 - Document 11 (N.D. Cal. 2010)
Court Description: ORDER GRANTING 4 Motion for Leave to Conduct Third-Party Discovery; and DENYING 7 Motion to Shorten Time. See order for details. Signed by Magistrate Judge Howard R. Lloyd on 08/27/2010. (hrllc1, COURT STAFF) (Filed on 8/27/2010)
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SolarBridge Technologies, Inc. v. Doe Doc. 11 1 ** E-filed August 27, 2010 ** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 SOLARBRIDGE TECHNOLOGIES, INC., a Delaware corporation, 12 No. C10-03769 LHK (HRL) ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO CONDUCT THIRD-PARTY DISCOVERY AND DENYING AS MOOT PLAINTIFF’S ADMINISTRATIVE MOTION Plaintiff, 13 v. 14 JOHN DOE (dba “Mark Tatley”), 15 16 17 18 [Re: Docket Nos. 4 & 7] Defendant. ____________________________________/ BACKGROUND SolarBridge Technologies, Inc. (“SolarBridge”), a developer of productions and systems for 19 solar panel installations, filed this action against the John Doe defendant (“Defendant”) alleging 20 violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. (“CFAA”), and 21 California Penal Code § 502(c) for unauthorized access of a computer, as well as statutory and 22 common law trade secret misappropriation and unfair competition, after one of SolarBridge’s 23 competitors notified it that it had received an anonymous email containing SolarBridge’s 24 confidential intellectual property and trade secret material (including schematics and other product 25 design documents related to current and future products). 26 The email to which the confidential material was attached was sent using the alias “Mark 27 Tatley” from the email address “tattel_49@yahoo.com” and had the subject heading “Gift.” 28 (Docket No. 5 (“Ramsey Decl.”) at ¶ 3.) Upon learning of this, SolarBridge sent an email to the Dockets.Justia.com 1 “tattel_49@yahoo.com” email address, requesting that the email recipient identify themselves, but 2 so far SolarBridge has received no reply. (Id. at ¶ 8.) It also searched public record names and the 3 Internet for the name “Mark Tatley” and the Yahoo! email address. (Id. at ¶ 6.) SolarBridge’s 4 investigation suggests that there is no real individual named “Mark Tatley” and that the email 5 address was created anonymously with fake information. (Id. at ¶ 7.) 6 SolarBridge has also contacted its other competitors to determine whether they received 7 similar emails, but they have indicated that they did not get any such email and do not have any 8 information to help identify Defendant. (Id.) SolarBridge further contacted all parties subject to 9 non-disclosure or confidentiality agreements and who might have had access to SolarBridge’s For the Northern District of California United States District Court 10 confidential information, but none of those parties have responded with any information to help 11 identify Defendant, either. (Id.) As such, after exhausting all reasonable efforts to identify and locate Defendant, SolarBridge 12 13 filed the instant motion for leave to conduct limited discovery of third party entities — specifically, 14 various internet service providers — necessary to identify and locate Defendant so SolarBridge can 15 properly serve Defendant in this action.1 (Docket No. 4.) LEGAL STANDARD 16 17 The practice of suing Doe defendants is generally disfavored in the Ninth Circuit. However, 18 in cases where the identity of the alleged defendant will not be known prior to the filing of a lawsuit, 19 “‘the plaintiff should be given an opportunity through discovery to identify the unknown 20 defendants, unless it is clear that discovery would not uncover the identities, or that the complaint 21 would be dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 22 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). When an anonymous Internet user is a target defendant, limited discovery to identify the 23 24 defendant may be permitted where a plaintiff: (1) 25 identifies the missing party with sufficient specificity such that the court can 26 determine that defendant is a real person or entity who could be sued in federal court; 27 1 28 SolarBridge also filed an administrative motion for the Court to hear its motion for leave to conduct third party discovery on August 31, 2010. Because the Court finds the matter suitable for determination without oral argument pursuant to Civil Local Rule 7-1(b), the Court will deny SolarBridge’s administrative motion as moot. 2 1 (2) identifies all previous steps taken to locate the elusive defendant; 2 (3) establishes to the court’s satisfaction that the lawsuit against defendant could 3 withstand a motion to dismiss; and (4) 4 states reasons justifying the specific discovery requested, and identifies a limited 5 number of persons or entities upon whom discovery might be served and for which there is a 6 reasonable likelihood that the discovery will lead to identifying information about defendant that 7 would make service of process possible. 8 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). DISCUSSION 9 SolarBridge has met its burden as set forth above. First, Defendant is an individual or entity For the Northern District of California United States District Court 10 11 that accessed SolarBridge’s confidential information and disclosed that information to one of its 12 competitors, and the email sent by Defendant is associated with San Jose-based company Yahoo!, 13 Inc. Second, and as described above, SolarBridge has undertaken a diligent investigation to 14 15 identify Defendant without the use of third party discovery, to no avail. The “Mark Tatley” name 16 and “tattel_49@yahoo.com” email address, by themselves, only have value insofar as they can be 17 associated with further email account information and/or an IP address. This information, though, is 18 only possessed by an email or internet service provider, and they generally do not divulge customer 19 information without a subpoena or other legal authorization. As such, SolarBridge seeks to 20 subpoena Yahoo!, Inc. and Google, Inc. for this otherwise unobtainable information.2 Third, the Court is satisfied that SolarBridge’s action would likely withstand a motion to 21 22 dismiss, as it appears to have sufficiently alleged claims for violations of the CFAA and California 23 Penal Code § 502(c) as well as statutory and common law trade secret misappropriation and unfair 24 competition. And fourth, SolarBridge has shown that there is a reasonable likelihood that its 25 26 2 27 28 SolarBridge states that has requested archived copies of the email from Google, Inc., the internet service provider for SolarBridge’s competitor that received the email from “Mark Tatley.” An archived copy of the email may reveal header information and transmission data, including the originating IP address(es), which would allow SolarBridge to identify the computer where the email was sent. (Ramsey Decl. at ¶¶ 11-15.) 3 1 requested discovery will lead to information to identify Defendant and make service on Defendant 2 possible. CONCLUSION 3 4 5 6 Based on the foregoing, the Court GRANTS SolarBridge’s motion for leave to conduct third party discovery. Accordingly, IT IS ORDERED THAT: 1. SolarBridge may subpoena Yahoo!, Inc. for registration, assignment, contact, billing and 7 payment information, and any IP address information related to the email account 8 “tattel_49@yahoo.com”; For the Northern District of California 2. SolarBridge may subpoena Google, Inc. for registration, assignment, contact, billing and 10 United States District Court 9 payment information associated with any IP address related to the sender of the email 11 from account “tattel_49@yahoo.com”; 12 3. SolarBridge will be permitted to seek discovery of other IP addresses that Defendant has 13 registered with the hosts/ISPs listed above, and to subpoena registration, assignment, 14 contact, billing and payment information for those additional addresses; 15 4. SolarBridge will be permitted to seek discovery of IP addresses that the hosts/ISPs listed 16 above have assigned to other users who have provided the same billing information as 17 that provided for the IP addresses associated with the email sent from the email account 18 “tattel_49@yahoo.com”; 19 5. To the extent discovery of the host/ISP records identifies other IP addresses that (a) were 20 associated with the email sent from the email account “tattel_49@yahoo.com”; and (b) 21 are not controlled by the subpoenaed hosts/ISPs, SolarBridge will be permitted to 22 subpoena other hosts/ISPs identified in the responses to its subpoenas for registration, 23 assignment, contact, billing and payment information for those IP addresses; and 24 6. In granting SolarBridge’s motion for leave to conduct discovery to identify Defendant, 25 the Court does not intend to foreclose any valid objections that may be raised by parties 26 responding to these subpoenas. 27 In addition, the Court DENIES AS MOOT SolarBridge’s administrative motion for shorten time. 28 4 1 2 3 IT IS SO ORDERED. Dated: August 27, 2010 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 C10-03769 HRL Notice will be electronically mailed to: 2 Gabriel M. Ramsey Gary Evan Weiss Jacob Marcus Heath 3 4 gramsey@orrick.com, aruiz@orrick.com gweiss@orrick.com, sdonlon@orrick.com jheath@orrick.com, kmudurian@orrick.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 5 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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