Unreported / Non-Citable
Background
Denuvo GmbH sued a defendant identified in the caption as Voices38 in the Northern District of California. In its ex parte motion (Dkt. No. 15), Denuvo said it does not know the defendant's identity or have contact information for the defendant, and so cannot properly effect service. It asked for leave to serve third-party subpoenas before the Rule 26(f) conference. The order does not describe the underlying claims, so this article does not characterize them.
The court began from the premise that, in these circumstances, courts have allowed early discovery narrowly tailored to identifying the defendant and determining where the defendant may be served, citing Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980). It noted that courts generally require the moving party to do four things. First, identify the defendant with enough specificity for the court to decide whether the defendant is a real person or entity who could be sued in federal court. Second, recount the steps taken to locate the defendant. Third, show that the action could survive a motion to dismiss. Fourth, file a request identifying the persons or entities on whom discovery might be served, with a reasonable likelihood that discovery will lead to identifying information. For that test the court cited Columbia Insurance Co. v. seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), and two other district court decisions. It also stated that the decision to allow early discovery under Rule 26(d) is within its discretion, citing Crawford-El v. Britton, 523 U.S. 574 (1998).
The Court’s Holding
The court granted the motion. It found that Denuvo showed good cause to proceed with early discovery for the purpose of identifying and serving the defendant. Denuvo may serve Discord, Inc., Valve Corporation and Reddit, Inc. with the narrowly tailored subpoenas attached to Dkt. No. 25, to identify the defendant and effect proper service.
A footnote explains that, at the court's direction, Denuvo substantially narrowed its initial requests. The court was satisfied that the revised requests, at Dkt. Nos. 24 and 25, are appropriately tailored to seek only the information warranted at this preliminary stage. The order does not make separate written findings on each of the four listed showings. It states its conclusion as good cause and approves the narrowed subpoenas. It also does not discuss the privacy interests of the defendant or the burden on the platforms, so any such balancing should not be attributed to the court.
The relief is limited and interim. It permits discovery before the Rule 26(f) conference and decides nothing about the merits. The order does not address what happens after the platforms respond, any objections or motions to quash by recipients or the defendant, or the later course of the case. Those matters remain open. It is an unpublished district court order and has no precedential force.
Key Takeaways
- A plaintiff who cannot identify or locate a defendant may ask the court for leave to serve third-party subpoenas before the Rule 26(f) conference, but the request is addressed to the court's discretion.
- The court relied on the commonly applied four-part showing from Columbia Insurance: a real, suable defendant, steps taken to locate that defendant, a claim that could survive a motion to dismiss, and specific third parties likely to hold identifying information.
- Here the court told the plaintiff to narrow its requests and approved only the revised subpoenas, which shows that breadth is scrutinized even when early discovery is granted.
- The authorization is confined to identifying the defendant and effecting service, and it names three recipients: Discord, Valve and Reddit.
- The order is ex parte and decides no merits issues, and it does not say how challenges to the subpoenas by recipients or the defendant would be handled.
Why It Matters
The order is a short, practical example of how a Northern District of California judge handles a request to identify an unknown defendant through platform subpoenas. It confirms that the court expects a purpose-limited request, and that the plaintiff may have to narrow its first draft before approval.
Because it is an unpublished, fact-specific discovery ruling that applies existing standards, it should be read as an illustration of current practice rather than as new law. Practitioners should note that the court's written reasoning is brief and that the scope of the subpoenas, rather than extended analysis of each factor, is where the court exercised its caution.