Zemskova v. Does

Background

Tatyana Zemskova sued John Does 1-10 and Jane Does 1-10. She alleged that unknown individuals created a website intended to bully and defame her. Her complaint asserted two causes of action: a claim under New York Civil Rights Law § 51, concerning the unauthorized use of a person’s name or image for advertising or trade purposes, and a claim for libel per se.

Zemskova sought permission to conduct expedited discovery before the parties’ usual discovery conference. Specifically, she wanted to serve a Federal Rule of Civil Procedure 45 subpoena on the website defendants’ internet service provider to obtain the name and address associated with the website’s registrant.

Legal Standard

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties have met and conferred unless the rules, the parties’ agreement, or a court order allows it. A court may authorize early discovery when there is good cause. Applying factors identified by the Court of Appeals for the Second Circuit, the court considered whether Zemskova had made a concrete initial showing of actionable harm, whether the discovery request was specific, whether other ways to obtain the information existed, whether the information was needed to advance her claims, and the anonymous defendants’ expectation of privacy.

Court’s Analysis

For the privacy-law claim, the court found that Zemskova’s allegations were sufficiently concrete for purposes of the expedited-discovery motion. It expressly did not decide the ultimate merits or sufficiency of that claim. For the libel claim, Zemskova alleged that the website accused her of targeting men for money, running a prostitution ring, and committing fraud, among other crimes. The court concluded that these allegations were sufficiently concrete to establish an initial libel-per-se claim for purposes of obtaining expedited discovery.

The court found the requested discovery—identifying the website registrant’s name and address—to be specific and narrowly tailored. It accepted Zemskova’s representation that the defendants could be identified only through information held by the internet service provider. The court further concluded that the requested information was sufficient, but no broader than necessary, to allow Zemskova to pursue her claims.

The court determined that Zemskova’s interest in learning the defendants’ names outweighed the minimal privacy interest an internet-service-provider subscriber might have in withholding their name. The defendants would have an opportunity to appear and oppose the lawsuit after being served.

The court noted that Zemskova mentioned a possible Lanham Act claim in her supporting memorandum, but because the complaint did not assert that claim, the court did not consider it for purposes of the motion.

Disposition

The court granted Zemskova’s request to serve a Federal Rule of Civil Procedure 45 subpoena on the John Doe defendants’ internet service provider. The order authorized expedited discovery only; it did not resolve the ultimate merits of Zemskova’s claims.