case no. n1scj05jnnn cls in the superior court of the...

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 5115670 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).

2. In order to obtain the identity of an anonymous defendant, the plaintiff

must:

EFiled: May 11 2016 04:00PM EDT Transaction ID 58993931

Case No. N16C-05-111 CLS

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 459-63.1

3. 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).

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 pre-

service 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 year-

old 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.

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 https://www.youtube.com/watch?v=RRcr_i7Cq74.4

4. 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, 679-80 (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.

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,

/s/ David L. Finger_______________

David L. Finger (ID #2556)

Finger & Slanina, LLC

One Commerce Center

1201 N. Orange St., 7th fl.

Wilmington, DE 19801

(302) 573-2525

Attorney for plaintiff David Grimaldi

Dated: May 11, 2016

Exhibit A



Zoosk Inc. v. Doe 1, Not Reported in F.Supp.2d (2010)

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

2010 WL 5115670Only 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.

No. C 10–04545 LB.|

Dec. 9, 2010.

Attorneys and Law Firms

Julio Cesar Avalos, Thomas Harold Zellerbach, OrrickHerrington & Sutcliffe LLP, Menlo Park, CA, for Plaintiff.

ORDER GRANTING PLAINTIFF'S MOTION FOREARLY DISCOVERY AND ORDERING DISCOVERY

LAUREL BEELER, United States Magistrate Judge.

I. INTRODUCTION

*1 On October 7, 2010, Plaintiff Zoosk, Inc. filed aComplaint alleging libel per se, trade libel, and intentionalinterference with prospective economic advantage against25 Doe defendants, alleging in part that they mounted adefamatory campaign against Zoosk. Complaint, ECF No.1. Zoosk previously asked for, and the court granted, leaveto take limited early discovery from third-party internetservice providers (“ISPs”) to discover the identity of the Doedefendants. See ECF Nos. 6–8. Two of the ISPs (ComcastCorporation and Time Warner Cable) responded to Zoosk'ssubpoenas, saying that they had identifying information andwere willing to produce it with a court order. ECF No. 9 at2. Comcast provided a draft order, and Zoosk asks the Courtto issue it. Id.

The court finds good cause, grants Zoosk's motion for earlydiscovery, and orders Comcast and Time Warner to produceidentifying information for the IP addresses at issue in amanner consistent with this order.

II. FACTS

According to Zoosk's complaint, an individual created aprofile on Zoosk's online social dating network under thename “Nita Nielsen,” posted nude pictures of herself, andadvertised her website, where she described herself as anadult entertainer, professional consort, and au fait fellatrix.Complaint, ECF No. 1 at 1, 4–5, ¶¶ 1, 13, 18–19. Zooskdetermined that the account violated its term's of use policyand permanently blocked the account. Id. at 4–5, ¶¶ 20–21. Auser or users then created a Twitter account under the name“Squirrel Juice” and began posting allegedly defamatorystatements about Plaintiff. Id. at 5–6, ¶¶ 22–28. When one ofZoosk's employees contacted “Squirrel Juice” via Twitter andasked the basis for the comments, an individual respondedusing the e-mail address carsondyle1@gmail .com and statedthat he would continue to discourage people from usingZoosk's service. Id. at 6, ¶¶ 29–31. The individual also postedZoosk's employee's e-mail address on Twitter. Id. at 7, ¶ 32.On October 9, 2009, Zoosk sent a cease and desist letterto [email protected]. Id. at 7, ¶ 33. According toZoosk, the defendants have continued to make defamatorystatements. Id.

Based on publicly-available information and informationfrom Twitter, Inc., Zoosk determined that eight distinctIP addresses accessed the Squirrel Juice Twitter account.Declaration of Julio Avalos, ECF No. 7 at 3, ¶ 9 (listing the IPaddresses and the ISPs). On October 18, 2010, Zoosk askedthe court to authorize limited early discovery in the form ofsubpoenas to the ISPs for personal identifying informationand contact information for the users of the IP addresses.Motion for Early Discovery, ECF No. 6 at 4–5; ProposedSubpoena, ECF No. 7–1 at 8. The subpoena identified contactinformation such as name, email address, telephone number,IP address, credit card information, and/or physical address.ECF No. 7–1 at 7. On October 22, 2010, the court authorizedthe subpoenas. ECF No. 8.

*2 Five of the addresses are owned by ISP Road RunnerHoldCo LLC (a d/b/a for Time Warner), and one is ownedby ISP Comcast. ECF No. 6 at 4; ECF No. 9 at 3. Citing 47U.S.C. § 551, both ISPs told Zoosk that they had responsiveinformation to the subpoena and would provide it with a courtorder. ECF No. 9 at 2–3. Comcast provided a draft order toZoosk. Id. at 2; ECF No. 9–1. Zoosk then asked this court toissue the order.

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II. DISCUSSION

A. Early DiscoveryA court may authorize early discovery before the Rule 26(f)conference for the parties' and witnesses' convenience andin the interests of justice. Fed.R.Civ.P. 26(d). Courts in thisdistrict 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 10–4377 SC, 2010 WL 4055667, at*2 (N.D.Cal. Oct.15, 2010); Solarbridge Tech. v. John Doe,No. C10–03769 HRL, 2010 U.S. Dist. LEXIS 97508, at *3–*6, 2010 WL 3419189 (N.D.Cal. Aug. 27, 2010); Semitool,Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275–277 (N.D.Cal.2002). Other districts in the Ninth Circuit applythe same standard. See, e.g., Texas Guaranteed Student LoanCorp. v. Dhindsa, No. C 10–0035, 2010 WL 2353520, at * 2(E.D.Cal. June 9, 2010); United States v. Distribuidora BatizCGH, S.A. De C. V., No C 07–370, 2009 WL 2487971, at *10(S.D.Cal. Aug. 10, 2009); Yokohama Tire Crop. v. DealersTire Supply, Inc., 202 F.R.D. 612, 613–14 (D.Ariz.2001)(collecting cases and standards).

When the identity of defendants is not known before acomplaint is filed, a plaintiff “should be given an opportunitythrough discovery to identify the unknown defendants, unlessit 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 WL2487971 (quoting Gillespie v. Civiletti, 629 F.2d 637, 642(9th Cir.1980)). In evaluating whether a plaintiff establishesgood cause to learn the identity of Doe defendants throughearly discovery, courts examine whether the plaintiff (1)identifies the Doe defendant with sufficient specificity thatthe court can determine that the defendant is a real person whocan be sued in federal court, (2) recounts the steps taken tolocate and identify the defendant, (3) demonstrates that theaction can withstand a motion to dismiss, and (4) proves thatthe discovery is likely to lead to identifying information thatwill permit service of process. Io Group, 2010 WL 4055667at * 1; Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573,578–80 (N.D.Cal.1999).

In this case, Zoosk has good cause for early discovery. First,Zoosk identified the possible Doe defendants with sufficientspecificity by identifying the eight IP addresses using theTwitter account “Squirrel Juice.” Avalos Declaration, ECFNo. 7 at 2–3, ¶¶ 5–9. Second, Zoosk identified the affirmativesteps it took to determine the Doe defendants' identities using

publicly-available information. Id. at 2–3, ¶¶ 6–8. Zoosk alsocontacted the Doe defendants by Twitter and by email andsent a cease-and-desist letter. Complaint, ECF No. 1 at 5–7, ¶¶ 22–33. Third, Zoosk pleaded its claims with sufficientparticularity to withstand a motion to dismiss. Complaint,ECF No. 1. Fourth, the ISPs both said they have identifyingsubscriber information for the IP addresses that were involvedin the allegedly defamatory campaign. Avalos Declaration,ECF No. 7 at 2, ¶ 7.

*3 Because the early discovery will reveal identities of theDoe defendants, good cause exist for early discovery. SeeSemitool, Inc., 208 F.R.D. at 276.

2. Order to ISPsAccording to Comcast and Time Warner, they will disclosethe information if the court issues an order. ECF No. 10–1 at4 (citing 47 U.S.C. § 551, the Cable Communications PolicyAct). Section 551 provides that a cable operator may disclosepersonal identifying information of a subscriber pursuant to acourt order authorizing the disclosure. 47 U.S.C. § 551(c)(2)(B). Here, because early discovery is authorized under Rule26(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 CableCommunications, LLC, and Time Warner Cable (d/b/a RoadRunner HoldCo LLC) (collectively, “the ISPs”) to obtainthe identity of Doe defendants previously authorized in thiscourt's order on October 22, 2010. See ECF No. 8. Theprocedure is as follows.

1. Zoosk shall serve subpoenas on the ISPs along with a copyof this Order.

2. The ISPs will have 15 days from the date of service uponthem to serve the subscribers of the IP addresses with a copyof the subpoenas and a copy of this Order. Zoosk's proposedorder contemplates, and the court orders here, that the ISPsmay provide notice using any reasonable means, includingwritten 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 ofservice upon them to file any motions in this court contesting

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the subpoena (including a motion to quash or modify thesubpoena). If that 30–day period lapses without a subscribercontesting the subpoena, the ISPs shall have 10 days toproduce the information responsive to the subpoena to Zoosk.

4. Zoosk's proposed order contemplates, and the court ordershere, that Zoosk shall pay the ISPs all reasonable costsof: (A) compiling the requested information; (B) providingpre-disclosure notifications to subscribers; and (C) all otherreasonable costs and fees incurred responding to discovery.

Comcast and Time Warner shall provide Zoosk with theamount of this reasonable payment upon the termination ofthe targeted subscriber's 30–day notice period.

IT IS SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2010 WL 5115670

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

Exhibit B



Exhibit 1

Exhibit 2

Information

We found that the organization for IP address 73.233.240.36 is Comcast Cable in Wilmington, Delaware, United Sta

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A more detailed IP address report for 73.233.240.36 is below. At the time you pulled this report, the time zone of

73.233.240.36 is America/New_York, and the current local time of 73.233.240.36 is 10.05.2016 17:42:46. More IP de

of 73.233.240.36 are shown below along with a location of the address on a map.

IP Lookup Result for 73.233.240.36

hub-scan.com/custom-tailored-demo

qualys.com/IP-Check

IP Address: 73.233.240.36

Host of this IP: c-73-233-240-36.hsd1.de.comcast.net

Organization: Comcast Cable

ISP/Hosting: Comcast Cable

Updated: 05/08/2016 10:53 AM

73.233.240.36 | IP Address in United States, Delaware http://73.233.240.36.ipaddress.com/

1 of 6 5/10/2016 5:43 PM

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73.233.240.36 Reverse IP | Websites on the same Webhosting

We found 0 hostnames for IP Address 73.233.240.36 (http://73.233.240.36.ipaddress.com/#ipinfo)

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Map location for IP Lookup Result for 73.233.240.36

City: Wilmington

Country: United States

State: Delaware

Postal Code: 19808

Timezone: America/New_York

Local Time: 05/10/2016 05:42 PM


2 of 6 5/10/2016 5:43 PM

Exhibit 3

Information

We found that the organization for IP address 70.215.69.147 is Verizon Wireless in Hockessin, Delaware, United

States.

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hub-scan.com/custom-tailored-demo

go.digital.ge.com/Predix

IP Address: 70.215.69.147

Host of this IP: 147.sub-70-215-69.myvzw.com

Organization: Verizon Wireless

ISP/Hosting: Verizon Wireless

Updated: 05/05/2016 03:19 AM


1 of 6 5/10/2016 5:49 PM

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City: Hockessin


State: Delaware

Postal Code: 19707


Local Time: 05/10/2016 05:49 PM


2 of 6 5/10/2016 5:49 PM

Exhibit 4

Information

We found that the organization for IP address 71.123.45.206 is Verizon Fios in Wilmington, Delaware, United States

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hub-scan.com/Audit-Analytics-Setup

thaicupid.com/Dating

IP Address: 71.123.45.206

Host of this IP: static-71-123-45-206.phlapa.fios.verizon.net

Organization: Verizon Fios

ISP/Hosting: Verizon Fios

Updated: 05/08/2016 06:18 AM


1 of 6 5/10/2016 5:51 PM

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City: Wilmington


State: Delaware

Postal Code: 19809


Local Time: 05/10/2016 05:51 PM


2 of 6 5/10/2016 5:51 PM

Exhibit 5

DelawareLiberal.net comment http://www.delawareliberal.net/2016/04/21/more‐shenanigans‐in‐tom‐gordons‐ncco‐government/

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:

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.



2

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, email address and street address of the

subscriber based upon their IP address.

3

__________________________________

J.

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