Everytown for Gun Safety Action Fund, Inc. v. Defcad, Inc.

Background

Everytown sued Defcad, Inc. and other defendants, including several anonymous users and accounts. The complaint asserted trademark infringement, false designation of origin, unfair competition, and trademark dilution. Everytown alleged that the defendants distributed downloadable files for manufacturing 3-D-printed firearm parts and accessories, and that some files contained Everytown’s trademarks.

On November 5, 2021, the court granted Everytown’s request for expedited discovery. Expedited discovery allows discovery to begin before the usual scheduling process when there is good cause. The order allowed Everytown to seek information from third-party service providers about the defendants’ identities, including names, addresses, and email addresses. It also allowed Everytown to seek information from Defcad about the identities of several anonymous accounts.

Defcad moved to stay, or pause, the expedited discovery order. Defcad objected that Everytown had not notified the defendants before making its request and argued that the discovery implicated the First Amendment rights of third parties, including co-defendants and account holders.

Court’s Analysis

The court stated that expedited discovery to identify unidentified defendants is routinely allowed in trademark-infringement cases seeking injunctive relief. The court also said it had considered Defcad’s objections anew, despite the fact that Everytown’s original application had been made without advance notice to the defendants.

The court applied a flexible “reasonableness and good cause” standard under Federal Rule of Civil Procedure 26(f). It first held that Defcad lacked standing to assert the First Amendment rights of third parties. Standing is the requirement that a party show a personal, particular injury rather than an injury to someone else. Because Defcad had not alleged an injury to itself from asserting those third parties’ rights, it could not object to the discovery on that basis as it related to third parties.

The court then addressed the objection on the merits in the alternative. It recognized that the First Amendment provides some protection for anonymous speech, but stated that anonymity cannot be used to conceal infringement of intellectual-property rights, including trademark rights. The court found that Everytown had alleged a prima facie case of trademark infringement, meaning an initial showing sufficient to support its request, and that Everytown could not effectively litigate its claims without identifying the alleged infringers.

Disposition

The court denied Defcad’s application for a stay of the expedited discovery order. The opinion did not state that the motion was denied with or without prejudice. The expedited discovery authorization therefore remained in place as described in the November 5 order.