IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY. v. ) C.A. No.

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DAVID GRIMALDI, ) ) Plaintiff, ) ) v. ) C.A. No. ) JANE DOE aka VERONICA ) JURY TRIAL DEMANDED HOBSON aka VICTORIA ) SUMMERS, ) ) Defendant. ) EX PARTE MOTION OF PLAINTIFF DAVID GRIMALDI TO ENGAGE IN PRE-SERVICE DISCOVERY Plaintiff David Grimaldi hereby moves the Court for an Order permitting discovery prior to service of process to enable plaintiff to uncover the identity of the defendant, and in support thereof states as follows: 1. When the identity of a defendant is not known before a complaint is filed, a plaintiff should be given an opportunity through discovery to identify the unknown defendant. Zoosk Inc. v. Doe, 2010 WL at *2 (N.D. Cal. Dec. 9, 2010) (Ex. A hereto). Delaware recognizes the practice of permitting discovery to identify those who post defamatory statements anonymously on the Internet. Doe v. Cahill, 884 A.2d 451 (Del. 2005). must: EFiled: May :00PM EDT Transaction ID Case No. N16C CLS 2. In order to obtain the identity of an anonymous defendant, the plaintiff

2 (a) to the extent reasonably practicable under the circumstances, undertake efforts to notify the anonymous poster that she is the subject of a subpoena or application for order of disclosure; (b) withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the discovery request; (c) support the defamation claim with facts sufficient to defeat a summary judgment motion, specifically that 1) the defendant made a defamatory statement; 2) concerning the plaintiff; 3) the statement was published; and 4) a third party would understand the character of the communication as defamatory. In addition, the public figure defamation plaintiff must plead and prove that 5) the statement is false. Id. at The criteria are easily satisfied. As to the first two, pursuant to federal law, an ISP may not disclose subscriber information absent a court order authorizing such disclosure and notification to the subscriber. 47 U.S.C. 551(c); Doe, 884 A.2d 1 A public figure need not at this stage establish a prima facie case of constitutional malice. Doe, 884 A.2d at 464. In any event, if plaintiff were deemed a public figure, his statement in his affidavit that the false statements were fabricated satisfies this requirement. See St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (actual malice may be established by proof that the story [was] fabricated by the defendant, or [was] the product of his imagination ). The evidence is also supported by the fact that Jane Doe posted defamatory statements on a Facebook page she created under a false name with a false biography and using photographs of another person to represent herself. (Ex. B hereto). 2

3 at 455 & n.4. 2 The proposed Order requires that plaintiff give notice to the defendant through her Twitter and Facebook accounts, as well as by letter with return receipt to anyone plaintiff suspects of being Jane Doe, advising Jane Doe of this action, this Motion, and that defendant has 30 days to respond to the motion, otherwise preservice discovery shall commence. Once all such notice has been given, plaintiff shall submit an affidavit to the Court confirming such notice. 4. The proposed Order also precludes issuance of subpoenas until either (i) thirty days after plaintiff filed with the Court the affidavit described in paragraph 3 above, if there has been no objection to the pre-service discovery filed with the Court, or (ii) if an objection is filed, after such objection is resolved by the Court. 5. As to the substantive requirements, they are easily met. Defendant has made defamatory statements online expressly referring to plaintiff by name, including accusations that plaintiff has a criminal record, that he attacked a 93 yearold woman, that he was in a bar fight while driving a county vehicle drunk, and that he did time in jail for a violent crime but his friend took the rap for him. (Grimaldi Aff. & Ex. 5). These provide evidentiary support that defendant made 2 In his affidavit, attached hereto, plaintiff explains how he discovered the relevant IP addresses. 3

4 the defamatory assertions set forth in paragraphs 2 and 4 of the Complaint. 3 Defendant s YouTube posting reiterating the claim of a criminal record for which plaintiff allegedly allowed another to take the rap for his alleged crime can be found online at These statements clearly identify plaintiff as the object of the defamatory assertions. Statements of crimes such as assault and driving while intoxicated, and committing a crime of violence leading to a prison sentence are defamatory. Gordon v. News-Journal Co., 176 A. 657, 661 (Del. Super. 1935) ( any words falsely written or published of and concerning a person, a fair reading of which impute to him guilt of any crime, or of any fraudulent, dishonest, or dishonorable conduct, are libelous ), overruled in part on other grounds, Read v. News-Journal Co., 474 A.2d 119 (Del. 1984). See also Clemente v. Espinosa, 749 F.Supp. 672, (E.D. Pa. 1990) (an accusation of criminality is libel although the defamer does not charge any particular criminal offense either by name or description, if the words used imply some crime, citing Restatement (Second) of Torts 571 Comment c (1977)). 3 The Court may take judicial notice of these online postings for the fact of their publication, and not as to the truth of the assertions. Muller-Paisner v. TIAA, 289 Fed.Appx. 461, 466 n.5 (2nd Cir. 2008). 4 Plaintiff has preserved the audio in the event the YouTube page is suddenly removed. 4

5 5. In his affidavit, plaintiff denies the truth of the defamatory statements and states that they were entirely fabricated. (Exhibit C 12). At this stage and for this purpose, at least, such sworn statement should be credited. See Doe, 884 A.2d at 464. WHEREFORE, for the foregoing reasons, plaintiff David Grimaldi respectfully requests that the Court enter the proposed Order provided herewith permitting him to take limited pre-service discovery to uncover the true identity of Jane Doe. Respectfully submitted, Dated: May 11, 2016 /s/ David L. Finger David L. Finger (ID #2556) Finger & Slanina, LLC One Commerce Center 1201 N. Orange St., 7th fl. Wilmington, DE (302) Attorney for plaintiff David Grimaldi 5

6 Exhibit A EFiled: May :00PM EDT Transaction ID Case No. N16C CLS

7 Zoosk Inc. v. Doe 1, Not Reported in F.Supp.2d (2010) 2010 WL Only the Westlaw citation is currently available. United States District Court, N.D. California, Oakland Division. ZOOSK INC., Plaintiff, v. DOE 1, aka Carson Dyle, an individual, and Does 2 25, individuals, Defendants. Attorneys and Law Firms No. C LB. Dec. 9, Julio Cesar Avalos, Thomas Harold Zellerbach, Orrick Herrington & Sutcliffe LLP, Menlo Park, CA, for Plaintiff. ORDER GRANTING PLAINTIFF'S MOTION FOR EARLY DISCOVERY AND ORDERING DISCOVERY LAUREL BEELER, United States Magistrate Judge. I. INTRODUCTION *1 On October 7, 2010, Plaintiff Zoosk, Inc. filed a Complaint alleging libel per se, trade libel, and intentional interference with prospective economic advantage against 25 Doe defendants, alleging in part that they mounted a defamatory campaign against Zoosk. Complaint, ECF No. 1. Zoosk previously asked for, and the court granted, leave to take limited early discovery from third-party internet service providers ( ISPs ) to discover the identity of the Doe defendants. See ECF Nos Two of the ISPs (Comcast Corporation and Time Warner Cable) responded to Zoosk's subpoenas, saying that they had identifying information and were willing to produce it with a court order. ECF No. 9 at 2. Comcast provided a draft order, and Zoosk asks the Court to issue it. Id. The court finds good cause, grants Zoosk's motion for early discovery, and orders Comcast and Time Warner to produce identifying information for the IP addresses at issue in a manner consistent with this order. II. FACTS According to Zoosk's complaint, an individual created a profile on Zoosk's online social dating network under the name Nita Nielsen, posted nude pictures of herself, and advertised her website, where she described herself as an adult entertainer, professional consort, and au fait fellatrix. Complaint, ECF No. 1 at 1, 4 5, 1, 13, Zoosk determined that the account violated its term's of use policy and permanently blocked the account. Id. at 4 5, A user or users then created a Twitter account under the name Squirrel Juice and began posting allegedly defamatory statements about Plaintiff. Id. at 5 6, When one of Zoosk's employees contacted Squirrel Juice via Twitter and asked the basis for the comments, an individual responded using the address carsondyle1@gmail.com and stated that he would continue to discourage people from using Zoosk's service. Id. at 6, The individual also posted Zoosk's employee's address on Twitter. Id. at 7, 32. On October 9, 2009, Zoosk sent a cease and desist letter to carsondyle1@gmail.com. Id. at 7, 33. According to Zoosk, the defendants have continued to make defamatory statements. Id. Based on publicly-available information and information from Twitter, Inc., Zoosk determined that eight distinct IP addresses accessed the Squirrel Juice Twitter account. Declaration of Julio Avalos, ECF No. 7 at 3, 9 (listing the IP addresses and the ISPs). On October 18, 2010, Zoosk asked the court to authorize limited early discovery in the form of subpoenas to the ISPs for personal identifying information and contact information for the users of the IP addresses. Motion for Early Discovery, ECF No. 6 at 4 5; Proposed Subpoena, ECF No. 7 1 at 8. The subpoena identified contact information such as name, address, telephone number, IP address, credit card information, and/or physical address. ECF No. 7 1 at 7. On October 22, 2010, the court authorized the subpoenas. ECF No. 8. *2 Five of the addresses are owned by ISP Road Runner HoldCo LLC (a d/b/a for Time Warner), and one is owned by ISP Comcast. ECF No. 6 at 4; ECF No. 9 at 3. Citing 47 U.S.C. 551, both ISPs told Zoosk that they had responsive information to the subpoena and would provide it with a court order. ECF No. 9 at 2 3. Comcast provided a draft order to Zoosk. Id. at 2; ECF No Zoosk then asked this court to issue the order Thomson Reuters. No claim to original U.S. Government Works. 1

8 Zoosk Inc. v. Doe 1, Not Reported in F.Supp.2d (2010) II. DISCUSSION A. Early Discovery A court may authorize early discovery before the Rule 26(f) conference for the parties' and witnesses' convenience and in the interests of justice. Fed.R.Civ.P. 26(d). Courts in this district generally consider whether a plaintiff has shown good cause for the early discovery. See, e.g., IO Group, Inc. v. Does 1 65, No. C SC, 2010 WL , at *2 (N.D.Cal. Oct.15, 2010); Solarbridge Tech. v. John Doe, No. C HRL, 2010 U.S. Dist. LEXIS 97508, at *3 *6, 2010 WL (N.D.Cal. Aug. 27, 2010); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, (N.D.Cal.2002). Other districts in the Ninth Circuit apply the same standard. See, e.g., Texas Guaranteed Student Loan Corp. v. Dhindsa, No. C , 2010 WL , at * 2 (E.D.Cal. June 9, 2010); United States v. Distribuidora Batiz CGH, S.A. De C. V., No C , 2009 WL , at *10 (S.D.Cal. Aug. 10, 2009); Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, (D.Ariz.2001) (collecting cases and standards). When the identity of defendants is not known before a complaint is filed, a plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds. Solarbridge, 2010 U.S. Dist. LEXIS 97508, *3, 2009 WL (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980)). In evaluating whether a plaintiff establishes good cause to learn the identity of Doe defendants through early discovery, courts examine whether the plaintiff (1) identifies the Doe defendant with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will permit service of process. Io Group, 2010 WL at * 1; Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, (N.D.Cal.1999). In this case, Zoosk has good cause for early discovery. First, Zoosk identified the possible Doe defendants with sufficient specificity by identifying the eight IP addresses using the Twitter account Squirrel Juice. Avalos Declaration, ECF No. 7 at 2 3, 5 9. Second, Zoosk identified the affirmative steps it took to determine the Doe defendants' identities using publicly-available information. Id. at 2 3, 6 8. Zoosk also contacted the Doe defendants by Twitter and by and sent a cease-and-desist letter. Complaint, ECF No. 1 at 5 7, Third, Zoosk pleaded its claims with sufficient particularity to withstand a motion to dismiss. Complaint, ECF No. 1. Fourth, the ISPs both said they have identifying subscriber information for the IP addresses that were involved in the allegedly defamatory campaign. Avalos Declaration, ECF No. 7 at 2, 7. *3 Because the early discovery will reveal identities of the Doe defendants, good cause exist for early discovery. See Semitool, Inc., 208 F.R.D. at Order to ISPs According to Comcast and Time Warner, they will disclose the information if the court issues an order. ECF No at 4 (citing 47 U.S.C. 551, the Cable Communications Policy Act). Section 551 provides that a cable operator may disclose personal identifying information of a subscriber pursuant to a court order authorizing the disclosure. 47 U.S.C. 551(c)(2) (B). Here, because early discovery is authorized under Rule 26(d), the court will issue the order to the ISPs. III. ORDER TO ISPs Zoosk's motion for early discovery is HEREBY GRANTED. Plaintiffs may serve discovery on Comcast Cable Communications, LLC, and Time Warner Cable (d/b/a Road Runner HoldCo LLC) (collectively, the ISPs ) to obtain the identity of Doe defendants previously authorized in this court's order on October 22, See ECF No. 8. The procedure is as follows. 1. Zoosk shall serve subpoenas on the ISPs along with a copy of this Order. 2. The ISPs will have 15 days from the date of service upon them to serve the subscribers of the IP addresses with a copy of the subpoenas and a copy of this Order. Zoosk's proposed order contemplates, and the court orders here, that the ISPs may provide notice using any reasonable means, including written notice sent to the subscriber's last known address, transmitted either by first-class mail or via overnight service. 3. The subscribers shall have 30 days from the date of service upon them to file any motions in this court contesting 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

9 Zoosk Inc. v. Doe 1, Not Reported in F.Supp.2d (2010) the subpoena (including a motion to quash or modify the subpoena). If that 30 day period lapses without a subscriber contesting the subpoena, the ISPs shall have 10 days to produce the information responsive to the subpoena to Zoosk. 4. Zoosk's proposed order contemplates, and the court orders here, that Zoosk shall pay the ISPs all reasonable costs of: (A) compiling the requested information; (B) providing pre-disclosure notifications to subscribers; and (C) all other reasonable costs and fees incurred responding to discovery. Comcast and Time Warner shall provide Zoosk with the amount of this reasonable payment upon the termination of the targeted subscriber's 30 day notice period. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2010 WL End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 3

10 Exhibit B EFiled: May :00PM EDT Transaction ID Case No. N16C CLS

11

12

13

14 Exhibit 1

15

16 Exhibit 2

17 IP Address in United States, Delaware 1 of 6 5/10/2016 5:43 PM Information We found that the organization for IP address is Comcast Cable in Wilmington, Delaware, United Sta Advertisements hub-scan.com/custom-tailored-demo qualys.com/ip-check A more detailed IP address report for is below. At the time you pulled this report, the time zone of is America/New_York, and the current local time of is :42:46. More IP de of are shown below along with a location of the address on a map. IP Lookup Result for IP Address: Host of this IP: Organization: ISP/Hosting: Updated: c hsd1.de.comcast.net Comcast Cable Comcast Cable 05/08/ :53 AM

18 IP Address in United States, Delaware 2 of 6 5/10/2016 5:43 PM City: Country: State: Wilmington United States Delaware Postal Code: Timezone: Local Time: America/New_York 05/10/ :42 PM Top of the Pag Reverse IP Websites on the same Webhosting We found 0 hostnames for IP Address ( Top of the Pag Map location for IP Lookup Result for

19 Exhibit 3

20 IP Address in United States, Delaware 1 of 6 5/10/2016 5:49 PM Information We found that the organization for IP address is Verizon Wireless in Hockessin, Delaware, United States. Advertisements hub-scan.com/custom-tailored-demo go.digital.ge.com/predix A more detailed IP address report for is below. At the time you pulled this report, the time zone of is America/New_York, and the current local time of is :49:40. More IP de of are shown below along with a location of the address on a map. IP Lookup Result for IP Address: Host of this IP: Organization: ISP/Hosting: Updated: 147.sub myvzw.com Verizon Wireless Verizon Wireless 05/05/ :19 AM

21 IP Address in United States, Delaware 2 of 6 5/10/2016 5:49 PM City: Country: State: Hockessin United States Delaware Postal Code: Timezone: Local Time: America/New_York 05/10/ :49 PM Top of the Pag Reverse IP Websites on the same Webhosting We found 0 hostnames for IP Address ( Top of the Pag Map location for IP Lookup Result for

22 Exhibit 4

23 IP Address in United States, Delaware 1 of 6 5/10/2016 5:51 PM Information We found that the organization for IP address is Verizon Fios in Wilmington, Delaware, United States Advertisements hub-scan.com/audit-analytics-setup thaicupid.com/dating A more detailed IP address report for is below. At the time you pulled this report, the time zone of is America/New_York, and the current local time of is :51:19. More IP de of are shown below along with a location of the address on a map. IP Lookup Result for IP Address: Host of this IP: Organization: ISP/Hosting: Updated: static phlapa.fios.verizon.net Verizon Fios Verizon Fios 05/08/ :18 AM

24 IP Address in United States, Delaware 2 of 6 5/10/2016 5:51 PM City: Country: State: Wilmington United States Delaware Postal Code: Timezone: Local Time: America/New_York 05/10/ :51 PM Top of the Pag Reverse IP Websites on the same Webhosting We found 0 hostnames for IP Address ( Top of the Pag Map location for IP Lookup Result for

25 Exhibit 5

26 DelawareLiberal.net comment in tom gordons ncco government/

27

28

29

30 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DAVID GRIMALDI, ) ) Plaintiff, ) ) v. ) C.A. No. ) JANE DOE aka VERONICA ) JURY TRIAL DEMANDED HOBSON aka VICTORIA ) SUMMERS, ) ) Defendant. ) [PROPOSED] ORDER GRANTING EX PARTE MOTION OF PLAINTIFF DAVID GRIMALDI TO ENGAGE IN PRE-SERVICE DISCOVERY On this day of, 2016, having considered the Ex Parte Motion of David Grimaldi to Engage in Pre-Service Discovery (the Motion ) seeking to issue subpoenas to discover the true identity of defendant Jane Doe aka Veronica Hobson aka Victoria Summers, and having determined that plaintiff has met the necessary criteria therefor, IT IS HEREBY ORDERED that the Motion is GRANTED, subject to the following conditions: EFiled: May :00PM EDT Transaction ID Case No. N16C CLS 1. Plaintiff shall, to the extent reasonably possible, give notice (directly or through counsel) of his Complaint, and the related Ex Parte Motion to File Complaint Against Jane Doe Defendant and the Ex Parte Motion to Engage in Pre- Service Discovery, to defendant Jane Doe through any known Facebook and Twitter accounts identified as belonging to Veronica Hobson or Victoria Summers.

31 2. To the extent plaintiff has suspicions about the true identity of Jane Doe, he shall (directly or through counsel) send written notice of his Complaint, and the related Ex Parte Motion to File Complaint Against Jane Doe Defendant and the Ex Parte Motion to Engage in Pre-Service Discovery, via U.S. mail, return receipt requested. 3. Upon giving the notices set forth in numbered paragraphs 1 and 2 above, counsel for plaintiff shall file a certification with this Court stating the methods used to comply with the notice requirements set forth in numbered paragraphs 1 and 2 above. 4. If Jane Doe does not file with the Court any objection to the pre-service discovery within thirty (30) days after receiving the notice(s) described in numbered paragraphs 1 and 2 above, plaintiff shall be authorized to issue subpoenas to Facebook, Twitter, Google, Comcast, Verizon Wireless and Verizon Fios. 5. If, within thirty (30) days after receiving the notice(s) described in numbered paragraphs 1 and 2 above, Jane Doe filed with the Court an Objection to the Motion, plaintiff shall not issue any pre-service subpoenas unless and until the Objection is resolved in favor of plaintiff. 6. Any subpoenas issued pursuant to this Order shall be limited in scope to information identifying the name, address and street address of the subscriber based upon their IP address. 2

32 J. 3