Hitting the “Unlike” Button on Expedited Discovery

Facebook sued Named and Unnamed Defendants for trademark infringement.

The Plaintiff sought expedited discovery from the Named Defendants to identify the Unnamed Defendants in support of later filing a motion for a preliminary injunction. Facebook, Inc. v. Various, Inc., 2011 U.S. Dist. LEXIS 64539, 6-9 (N.D. Cal. June 16, 2011).

The Court denied the motion for expedited discovery.

The opinion is silent if the Court was later un-friended.

The Court found the Plaintiff failed to show good cause, one of the requirements for expedited discovery.  Facebook, Inc., at *6.

The 9th Circuit allows expedited discovery to identify unknown defendants when 1) a plaintiff cannot identify any defendants and 2) there are “legitimate fears” that information leading to the identities of the defendants faces “imminent destruction.”  Facebook, Inc., at *6.

As the Court found:

Plaintiff faces neither circumstance. Here, Plaintiff may obtain discovery to identify Unnamed Defendants during the normal course of discovery. Moreover, Plaintiff has not argued that relevant information may be in danger of destruction.

Facebook, Inc., at *7.

The Court further noted that a court may find good cause when there is a pending preliminary injunction motion; that does not mean a party’s mere inclination to file one supports a finding of good cause for expedited discovery.  Facebook, Inc., at *7. As the Court noted:

Nothing has prevented Plaintiff from filing a preliminary injunction, which it later could move to amend once it knew Unnamed Defendants’ identities.

Facebook, Inc., at *7-8.

The Court also took the Plaintiff’s discovery requests to task, finding them to “be implausibly tailored for the sole purposes of discerning Unnamed Defendants’ identities and crafting a motion for preliminary injunction.” Facebook, Inc., at *8.

Bow Tie Thoughts

As a good friend has said, “electronically stored information is both prolific and easily destroyed.”  In cases of infringement, expedited discovery is often needed to identify doe defendants, because of the risk of ESI being lost that can identify a party.  It is also safe to say that the Federal Judges in the Northern District of California have seen their fair share of these cases, given that companies venued here include technology titans such as Facebook, Google and Apple.

Courts likely will not give attorneys seeking early discovery a fast pass to identify doe defendants if there are actual named defendants in a lawsuit.   If a named party is already in the lawsuit, with a duty to preserve data that arguably should identify an un-named defendant, this significantly cuts against a Federal Judge allowing early discovery.

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 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.