NCS Pearson, Inc. v. Does

Background

NCS Pearson, Inc. alleged that twenty-one unidentified defendants sent emails to NCS Pearson, its clients, competitors, media outlets, and government email addresses. According to the complaint, the emails falsely accused NCS Pearson and its personnel of corruption, kickbacks, cartel activity, testing fraud, and other misconduct. Some emails allegedly altered NCS Pearson communications or falsely appeared to come from other people or organizations.

NCS Pearson asserted claims under the Lanham Act, the CAN-SPAM Act of 2003, defamation law, and tortious-interference law. Because the alleged senders were unidentified, NCS Pearson asked for permission to obtain early discovery from Google, including account-holder information and technical information associated with specified Google email accounts.

The court had previously denied an earlier discovery request without prejudice because NCS Pearson had not provided enough of the offending emails to support its claims, had not described all attempts to contact the Doe defendants, and had made requests that were too broad. NCS Pearson then filed a renewed motion with additional emails, information about its efforts to identify the defendants, and narrower requests.

Legal standard

Federal Rule of Civil Procedure 26 generally prevents parties from seeking discovery before the required early case conference unless the court authorizes it. District courts in the Eighth Circuit generally apply a good-cause test to requests for early discovery. The relevant considerations are whether the plaintiff has made a concrete initial showing of actionable harm, whether the requests are specific, whether other ways exist to obtain the information, whether the information is needed to advance the case, and the opposing party’s privacy expectations.

The court explained that this standard helps protect anonymous speech, including speech that may receive protection under the First Amendment. The party seeking discovery bears the burden of showing good cause, and the request must be narrowly tailored.

Court’s analysis

The court found that NCS Pearson met its initial evidentiary burden at least for its Lanham Act claim. It identified the elements of that claim as a false statement about another’s product, a tendency to deceive a substantial part of the audience, material deception likely to influence purchasing decisions, use of interstate commerce, and actual or likely injury. The court concluded that the emails, as alleged, made false statements about NCS Pearson’s services and products to customers, government officials, and the media, and that those statements were likely to influence purchasing decisions and harm NCS Pearson.

The court did not decide whether NCS Pearson met its initial burden on the defamation and tortious-interference claims because some claims could raise statute-of-limitations issues. It also noted that the complaint did not assert that NCS Pearson was an internet-access service provider, an issue relevant to standing under the CAN-SPAM Act.

The court found the revised subpoena requests sufficiently specific because they sought information intended to identify the people associated with the listed email accounts. It also found that NCS Pearson needed the information to proceed, that Google apparently would not provide it without a court order, and that NCS Pearson had adequately described its unsuccessful efforts to identify the defendants. To address privacy concerns, the court required notice to the subscribers and allowed them to challenge the subpoena or seek permission to proceed anonymously.

Order

The court granted NCS Pearson’s renewed motion for leave to conduct expedited third-party Doe discovery. NCS Pearson may serve Google with a subpoena consistent with the order. The subpoena may seek information sufficient to identify the account holders for the specified accounts, including names, addresses, other email addresses, telephone numbers, account information, account-activity information, payment details, contact history, and certain passively collected information such as Internet Protocol addresses, browser information, and media-access-control information.

Google must notify each affected subscriber within fourteen calendar days after receiving the subpoena. The subscriber then has forty-five calendar days from the notice date to seek a protective order or file another response. Google may also seek an order protecting its information or canceling the subpoena during that period. If no challenge is filed, Google has fourteen days after the forty-five-day period ends to produce the information. If a challenge is filed, Google may not disclose that subscriber’s information until the court rules on it.

NCS Pearson may not publicly disclose information produced under the subpoena until the possible Doe defendants have had an opportunity to ask to proceed anonymously and the court has ruled on that request. The court also ordered that identifying materials in an anonymity request may be temporarily filed under seal. The court denied NCS Pearson’s request for follow-up discovery without prejudice. NCS Pearson may seek further permission for additional discovery consistent with the Federal Rules of Civil Procedure. No other discovery was authorized at that time.