The Plaintiffs in 1524948 Alberta Ltd. v. John Doe 1-50 claimed they were the victims of trademark infringement, trade libel, defamation and intentional interference with contractual relationships. The Plaintiffs claimed the unknown Defendants used a website “to publish allegedly “false, defamatory and infringing statements and to conduct other unlawful activity targeted at Plaintiff and its website…” 1524948 Alberta Ltd. v. John Doe 1-50, 2010 U.S. Dist. LEXIS 100482 (D. Utah Sept. 22, 2010).
Discovery does not commence until there has been a Federal Rule of Civil Procedure Rule 26(f) conference.
If a party is seeking expedited discovery before the Rule 26(f) meet and confer, the moving party has the burden of showing good cause.
Good cause exists where there are claims of unfair competition, infringement or physical evidence may be destroyed with the passage of time. 1524948 Alberta Ltd., at *1-3.
The Court found good cause to grant the Plaintiffs’ request for expedited discovery. 1524948 Alberta Ltd., at *3. The Court cited that infringement cases warrant expedited discovery. Moreover, the Court noted that the discovery was transitory in nature and was required for the case to go forward. 1524948 Alberta Ltd., at *3-4.
The Court specifically ordered:
…Plaintiff may serve subpoenas upon those advertising networks as outlined in its motion to discover the identity of Defendants. These subpoenas may seek the “user data, including origination information, contact and payment information, to identify those Defendants directly responsible for running advertising on the BPAW website as well as the recipient of the revenues realized by BPAW as a result of those advertisements,” but the subpoenas shall not request any revenue amounts. At this time the court is not persuaded that the amount of money Defendants received from advertising is necessary for Plaintiff to discovery their identity.
1524948 Alberta Ltd. v. John Doe 1-50, at *4-5.
Bow Tie Thoughts
One justification for expedited discovery includes the loss of “physical evidence from the passage of time.” 1524948 Alberta Ltd., at *1-3. The transitory nature of data being both prolific and fragile is conceptually the same as physical evidence being lost from the passage of time. It should not be a surprise if expedited discovery is ordered as a matter of standard procedure for these sort of online tort cases.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.