Northern District Grants Leave to Subpoena ISPs to Determine Identity of Anonymous Emailer of Trade Secret Information

Subpoena and Summons Extrordinary
Image by A Gude via Flickr

The Northern District granted a motion for leave to conduct third-party discovery on various internet service providers to determine the identity of an anonymous sender of trade secret information.  SolarBridge Technologies, Inc. v. Doe, No. C10-03769 LHK (HRL), 2010 WL 3419189 (N.D. Cal. Aug. 27, 2010) (slip op).

SolarBridge Technologies, Inc. (“SolarBridge”) is a developer of productions and systems for solar panel installations.  Id. *1.  After one of SolarBridge’s competitors notified it that it had received an anonymous email containing SolarBridge’s confidential intellectual property and trade secret material (e.g., schematics, product design documents), SolarBridge filed an action against a Doe defendant (“Defendant”) alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. (“CFAA”), and California Penal Code § 502(c) for unauthorized access of a computer, as well as statutory and common law trade secret misappropriation and unfair competition.

The confidential information was sent using an email address alias.  SolarBridge took the following steps to identify the user:

  • sent an email to the email address, requesting that the email recipient identify themselves
  • searched public record names and the Internet for the alias
  • contacted its other competitors to determine whether they received similar emails
  • contacted all parties subject to non-disclosure or confidentiality agreements and who might have had access to SolarBridge’s confidential information

Id. *1.

Standard

The court noted that the “practice of suing Doe defendants is generally disfavored in the Ninth Circuit” but where the identity of the alleged defendant will not be known prior to the filing of a lawsuit, “the 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.” Id. (citing Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).  The court stated the standard for allowing limited discovery to identify a target defendant who is an anonymous internet user as follows:

(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 steps taken to locate the elusive defendant;

(3)    establishes to the court’s satisfaction that the lawsuit against defendant could withstand a motion to dismiss; and

(4)    states reasons justifying the specific discovery requested, and identifies a limited number of persons or entities upon whom discovery might be served and for which there is a reasonable likelihood that the discovery will lead to identifying information about defendant that would make service of process possible.

Id. *2 (citing Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal.1999)).

The court found that SolarBridge met its burden.  (1) Defendant is an individual or entity that accessed SolarBridge’s confidential information and disclosed that information to one of its competitors, and the email sent by Defendant is associated with Yahoo!; (2) SolarBridge has undertaken a diligent investigation to identify Defendant without the use of third party discovery, to no avail; (3) SolarBridge’s action would likely withstand a motion to dismiss, as it appears to have sufficiently alleged claims for violations of the CFAA and California Penal Code § 502(c) as well as statutory and common law trade secret misappropriation and unfair competition; (4) SolarBridge has shown that there is a reasonable likelihood that its requested discovery will lead to information to identify Defendant and make service on Defendant possible.

Subpoenas

The court granted leave to conduct the following discovery:

  1. SolarBridge may subpoena Yahoo!, Inc. for registration, assignment, contact, billing and payment information, and any IP address information related to the email account “tattel_49@yahoo.com“;
  2. SolarBridge may subpoena Google, Inc. for registration, assignment, contact, billing and payment information associated with any IP address related to the sender of the email from account “tattel_49@yahoo.com”;
  3. SolarBridge will be permitted to seek discovery of other IP addresses that Defendant has registered with the hosts/ISPs listed above, and to subpoena registration, assignment, contact, billing and payment information for those additional addresses;

(1)    *3 4. SolarBridge will be permitted to seek discovery of IP addresses that the hosts/ISPs listed above have assigned to other users who have provided the same billing information as that provided for the IP addresses associated with the email sent from the email account “tattel_49@yahoo.com”;

  1. To the extent discovery of the host/ISP records identifies other IP addresses that (a) were associated with the email sent from the email account “tattel_49@yahoo.com”; and (b) are not controlled by the subpoenaed hosts/ISPs, SolarBridge will be permitted to subpoena other hosts/ISPs identified in the responses to its subpoenas for registration, assignment, contact, billing and payment information for those IP addresses; and
  2. In granting SolarBridge’s motion for leave to conduct discovery to identify Defendant, the Court does not intend to foreclose any valid objections that may be raised by parties responding to these subpoenas.

Id. **2-3.

Judge

United States Magistrate Judge Howard R. Lloyd.

By CHARLES H. JUNG

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