Don’t Know Who To Sue? Magistrate Judge Toliver Lays Out The Procedure For Obtaining Discovery To Find Out

Originally published by Steven Callahan.

On July 12, 2017, Magistrate Judge Toliver issued an Order in Mary Kay v. Ayon (available here) detailing how to obtain discovery to determine a defendant’s identity. In the case, Mary Kay (the plaintiff) filed a motion for leave to conduct discovery prior to the Rule 26(f) conference. Mary Kay accused certain unnamed “Doe” defendants of “illegally selling products bearing the Mary Key registered trademarks through three Internet storefronts on amazon.com (Amazon), each of which ships the infringing products from Rowlett, Texas.” Mary Kay asserted that two third parties—Amazon and Mail Plus—would likely have information regarding the “Doe” defendants’ identities. Mary Kay accordingly sought leave to serve subpoenas on Amazon and Mail Plus to determine defendants’ true identities.

Judge Toliver noted that, in general, a party may not seek discovery prior to the Rule 26(f) conference, unless “good cause” exists for such discovery. “Good cause” may exist where the plaintiff, absent early discovery, cannot identify and serve a defendant.

In such an instance, the court considers whether the moving party: (1) identifies the missing party “with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court”; (2) identifies all previous efforts to locate the unknown defendant; and (3) establishes that its suit could withstand a motion to dismiss. In other instances, courts have considered (1) whether the plaintiff makes a prima facie showing of harm; (2) the specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) the necessity of the subpoenaed information to advance the claim; and (5) the user’s expectation of privacy.

Judge Toliver determined that Mary Kay had shown good cause for early discovery. Mary Kay identified the Doe defendants with as much clarity as possible, detailed its effort to locate and identify the Doe defendants, and established that its suit could withstand a motion to dismiss. Lastly, Amazon and Mail Plus appeared to be the only entities from which Mary Kay could obtain information regarding the identities of the Doe defendants. As such, Judge Toliver allowed Mary Kay to serve subpoenas on Amazon and Mail Plus for documents and other information to enable Mary Kay to determine the names, addresses, and contact information of the relevant individuals.

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