Expedited electronic discovery includes subpoena to ISP and imaging of defendants’ hard drives

Allcare Dental Management, LLC v. Zrinyi, No. 08-407, 2008 WL 4649131 (D. Idaho October 20, 2008)

Plaintiffs filed a defamation lawsuit against some known defendants as well as some anonymous John Doe defendants in federal court over statements posted to Complaintsboard.com. The plaintiffs did not know the names or contact information of the Doe defendants, so they needed to get that information from the Does’ Internet service provider.  But the ISP would not turn that information over without a subpoena because of the restrictions of the Cable Communications Policy Act, 47 U.S.C. § 501 et seq. [More on the CCPA.]

Under Federal Rule of Civil Procedure 26(d)(1), a party generally may not seek discovery in a case until the parties have had a Rule 26(f) conference to discuss such things as discovery. Because of the Rule 26(d)(1) requirement, the plaintiffs found themselves in a catch-22 of sorts: how could they know with whom to have the Rule 26(f) conference if they did not know the defendants’ identity.

So the plaintiffs’ filed a motion with the court to allow a subpoena to issue to the ISP prior to the Rule 26(f) conference. Finding that there was good cause for the expedited discovery, the court granted the motion. It found that the subpoena was needed to ascertain the identities of the unknown defendants. [More on Doe subpoenas.] Furthermore, it was important to act sooner than later, because ISPs retain data for only a limited time.

The Plaintiffs also contended that that the known defendants would likely delete relevant information from their computer hard drives before the parties could engage in the ordinary process of discovery. So the plaintiffs’ motion also sought an order requiring the known defendants to turn over their computers to have their hard drives copied.

The court granted this part of the motion as well, ordering the known defendants to turn their computers over to the plaintiffs’ retained forensics professional immediately. The forensics professional was to make the copies of the hard drives and place those copies with the court clerk, not to be accessed or reviewed until stipulation of the parties or further order from the court.