Simple Design Ltd. v. Candymobi Information Technology Co.

Background

Simple Design Ltd., doing business as Leap Fitness, sued Candymobi Information Technology Co., Beijing Aipu Century Technology Co., and Doe defendants 1 through 10. The complaint alleged federal trademark infringement, violations of the Lanham Act, and unfair competition involving women’s health and fitness applications published through the Google Play Store.

Simple Design filed an administrative motion for permission to take limited discovery before the parties’ Rule 26(f) conference. Early discovery is information-gathering allowed before that conference. Simple Design sought information that could identify the named defendants and the Doe defendants. It asked to subpoena Google for account information associated with the email addresses lecongnama9x@gmail.com, senia455641@gmail.com, and seniawang0917@gmail.com, as well as information about the Google Play developer accounts “Candyapps Studio” and “Super Fitness App.”

Simple Design supported the motion with a declaration and Google Play Store printouts identifying the applications and developer information. It also represented that, after it mailed the summons and complaint to Candymobi in Hong Kong, the contact information, including the physical address, was removed from Candymobi’s website.

Court’s Analysis

Federal Rule of Civil Procedure 26(d) generally prohibits discovery before the Rule 26(f) conference unless the rules, the parties’ agreement, or a court order allows it. The court applied the good-cause standard, under which the need for early discovery must outweigh prejudice to the responding party.

The court considered the factors identified in Columbia Insurance Co. v. Seescandy.com: identifying specific defendants who could be sued in federal court, describing efforts to locate and identify them, showing that the case could survive a motion to dismiss, and demonstrating that the requested discovery was reasonably likely to produce information allowing service of process. The court reviewed Simple Design’s filings and supporting documents and found that Simple Design had established good cause.

Order

The court granted Simple Design leave to serve Google with a Federal Rule of Civil Procedure 45 subpoena seeking documents sufficient to identify the account information for the three email addresses and the two developer accounts. The subpoena could seek the names, addresses, and telephone numbers of the owners of the relevant accounts.

The order required Simple Design’s counsel to issue a subpoena substantially in the form attached to its motion and to include a copy of the order. Google was given 21 days after service to notify each person or entity whose information was sought by providing a copy of the subpoena and the order. Each notified person or entity, and Google, then had 30 days after service to challenge the subpoena, including by asking the court to cancel or modify it. If that period expired without a challenge, Google was given 10 days to produce the responsive information.

Because the subpoena required only document production and no deposition appearance, the order stated that witness and mileage fees did not apply. Google could not charge Simple Design in advance, and any later production charge had to be supported by a billing summary and cost reports. Google also had to preserve the subpoenaed information until producing it or until a timely motion to cancel the subpoena was finally resolved. Judge Vince Chhabria granted the requested leave to serve subpoenas on Google.