NCS Pearson, Inc. v. Does

Background

NCS Pearson, Inc. sued 21 unidentified defendants, called John Does 1 through 21. The complaint asserted claims under the Lanham Act, the CAN-SPAM Act, defamation, and tortious interference with business expectancy. NCS Pearson alleged that the defendants sent emails to the company, its employees, clients, competitors, media outlets, and government addresses. According to the allegations, the emails made false accusations about corruption, kickbacks, cartel activity, testing fraud, and other misconduct, and some emails allegedly altered confidential communications or used materially false header information.

NCS Pearson sought permission to conduct expedited third-party discovery from Google before the parties’ required discovery conference. Its proposed Rule 45 subpoena requested information that could identify the account holders, including names, addresses, telephone numbers, account records, payment details, Internet Protocol addresses, browser information, and media-access-control information. It also sought email messages, header information, and connection logs for the identified accounts dating from January 1, 2015, to the present.

Legal standard

Rule 26(d) generally prevents a party from seeking discovery before the parties have held the required discovery conference, unless a rule, agreement, or court order permits earlier discovery. District courts in the Eighth Circuit generally apply a “good cause” test to requests for early discovery. The factors include: whether the plaintiff has made a concrete initial showing of an actionable claim; whether the request is specific; whether other ways exist to obtain the information; whether the information is needed to advance the claim; and the anonymous speaker’s privacy expectations. The court noted that early discovery identifying anonymous speakers can implicate protected speech under the First Amendment.

Court’s analysis

The court held that NCS Pearson had not made the required initial showing of a legally supported claim against each defendant whose information it sought. NCS Pearson had submitted only a few of the allegedly offending emails, and those materials concerned only John Does 1 and 12. The court also noted that some emails described in the complaint did not appear to have been submitted for review. Because NCS Pearson based its claims on communications already in its possession, the court required it to provide all such emails and explain, on a defendant-by-defendant basis, how the emails or other evidence satisfied the specific elements of at least one claim.

The court also found the proposed discovery overly broad. It explained that early discovery can be sufficiently specific when it seeks information such as an anonymous account holder’s name and address, contact information, Internet-service-provider information, and other email addresses associated with the account. But the proposed subpoena went further by seeking all active and archived emails exchanged between the accounts, reaching back to 2015. The court characterized that request as a fishing expedition and said information about the contents of the defendants’ emails should generally be sought from the defendants after they are identified and served.

The court further stated that a renewed request should explain why the information sought from Google was necessary and narrowly tailored to identifying the people who sent the allegedly offending communications. The court also said a renewed motion should describe, with supporting declarations, all attempts to contact each John Doe defendant, rather than only the senders associated with two email accounts.

Disposition

The court denied without prejudice NCS Pearson’s Motion for Leave to Conduct Expedited Third-Party Doe Discovery. The court stated that NCS Pearson could renew the motion, but any renewed motion would require a hearing before the court. The order addressed the requested discovery and did not decide the merits of NCS Pearson’s underlying claims.