Mirza v. Doe 1-2

Background

Dr. Muhammad Mirza and Allied Medical and Diagnostic Services, LLC sued two unidentified defendants, called John Does #1-2. The complaint alleged that the defendants published defamatory reviews on Yelp.com concerning Mirza’s application of Botox injections. The plaintiffs asserted claims for defamation and tortious interference with contracts.

Before the usual discovery conference required by Federal Rule of Civil Procedure 26(f), the plaintiffs asked for permission to serve subpoenas on Yelp.com and other internet service providers. They sought information that could identify the Doe defendants and provide their contact information.

Court’s analysis

The court applied a flexible standard of reasonableness and good cause to the request for expedited discovery. In this context, courts generally require a plaintiff to show a prima facie case—a sufficient initial showing of a claim—and that the plaintiff cannot identify the defendants without a court-authorized subpoena.

The court concluded that the plaintiffs had made the required initial showing for their defamation claim. Under New York law, defamation requires a false and defamatory statement about the plaintiff, publication to a third party, fault by the defendant, and injury. The plaintiffs alleged that the Doe defendants published, or caused the publication of, false statements about Mirza’s Botox practice on Yelp.com and that the publication injured the plaintiffs.

The court did not decide whether the plaintiffs had made the required initial showing for tortious interference with contracts. It noted that the plaintiffs had not supported their assertion with authority and had alleged only in somewhat conclusory terms that valid contracts existed with their patients, customers, and vendors.

Ruling and conditions

The court granted the plaintiffs’ request for permission to serve subpoenas under Federal Rule of Civil Procedure 45 as to Yelp.com, but denied the request as to any other third party or internet service provider. The court said the plaintiffs could submit another letter identifying additional providers and explaining why expedited discovery from them would be justified.

The plaintiffs must attach the order to all subpoenas served under it. A subpoena recipient must give the Doe defendants a copy of the order within 10 days after receiving the subpoena. The defendants then have 30 days from service of the order to file a motion challenging the subpoena, including a motion to quash or modify it. The recipient may not disclose the defendants’ information before that period ends. If no timely challenge is filed, the recipient must produce responsive information within 10 days after the 30-day period expires.

If a challenge is filed, the recipient may not disclose information until the court orders discovery to resume. The recipient must preserve the information while a timely challenge is pending. Any information disclosed may be used only to identify and serve the defendants. The court also adjourned the scheduled initial status conference indefinitely.