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77 United States District Court 88 Central District of California 99 1100 1111 KENRICO LTD, Case No. 2:19-cv-07705-ODW(MAAx)

1122 Plaintiff, ORDER GRANTING PLAINTIFF’S 1133 v. MOTION FOR SERVICE VIA EMAIL AND LEAVE TO TAKE 1144 EVGENY LAPIK, DISCOVERY PRIOR TO THE RULE 26(f) CONFERENCE [13] 1155 Defendants.

1166 1177 1188 I. INTRODUCTION 1199 Plaintiff Kenrico LTD (“Kenrico”) moved for leave to take limited discovery 2200 prior to the Rule 26(f) conference. Kenrico seeks leave of the Court to identify 2211 Defendant Evgeny Lapik (“Lapik”), who has allegedly operated, managed, and/or 2222 maintained a scheme to sell products with false ingredients, using in part, a seller 2233 account on the website Amazon.com, Inc. to the harm plaintiff and consumers. 2244 Kenrico requests leave to serve Rule 45 subpoenas on two third-party sources, 2255 Google, Inc. (“Google”), and Amazon.com, Inc (“Amazon”). For the reasons below, 2266 the Court GRANTS Kenrico leave to serve a subpoena on Google and Amazon.1 2277

2288 1 After carefully considering the papers filed in support of the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 Kenrico is engaged in the business of manufacturing, selling and marketing a 3 range of consumer products. (Compl. ¶ 7, ECF No. 1.) One of Kenrico’s prominent 4 products includes foot pads used for personal care. (Compl. ¶ 8, ECF No. 1.) Lapik 5 also manufactures, sells and markets foot pads. (Compl. ¶ 11, ECF No. 1.) Kenrico 6 alleges that Lapik has falsely represented and advertised its products contain the 7 ingredient sporopollenin. (Mot. for Leave to Take Discovery (“Mot.”) 5, ECF No. 13; 8 Compl. ¶ 14.) Lapik allegedly uses Amazon to sell its fraudulent products under the 9 seller account name Lapik. (Mot. 4.) Kenrico requested Amazon to provide 10 information related to seller Lapik, Amazon provided Lapik’s full name and the email 11 address [email protected] (“Email Address”). (Mot. 5) To stop Lapik’s 12 fraudulent solicitations, Kenrico sued Lapik for false advertising and unfair 13 competition. (Compl. ¶¶ 15–25.) Attempting to ascertain Lapik’s identity and serve 14 the Complaint, Kenrico also investigated independently through various means. 15 (Mot. 2–4.) Kenrico has been unable to identify Lapik’s physical address for 16 complete service other than through email. (Mot. 3.) 17 Kenrico now moves for leave to conduct early discovery and serve Lapik via 18 Email Addresses. Specifically, Kenrico seeks to serve Rule 45 subpoenas on two 19 third-party sources, (i) Google and (ii) Amazon. (Mot. 8.) From Google and 20 Amazon, Kenrico seeks documents regarding Lapik’s sales, identity, and physical 21 address. (Notice of Service 2, ECF No. 16.) Kenrico asserts the information sought 22 will enable it to identify Lapik and serve him in this action. (Mot. 8.) 23 III. DISCUSSION 24 A court may authorize early discovery before the Rule 26(f) conference “for the 25 parties’ and witnesses’ convenience and in the interests of justice.” Fed. R. Civ.

(d). Where a plaintiff does not know the identity of the defendants, the Ninth 27 Circuit has found that a plaintiff “should be given an opportunity through discovery to 28 identify the unknown defendants, unless it is clear that discovery would not uncover 1 the identities, or that the complaint would be dismissed on other grounds.” Gillespie v. 2 Civiletti,

(9th Cir. 1980). 3 Courts within the Ninth Circuit generally consider whether a plaintiff has 4 shown “good cause” for early discovery. See, e.g., Semitool, Inc. v. Tokyo Electron 5 America, Inc.,

, 275–77 (N.D. Cal. 2002); Uber Techs., Inc. v. Doe, 6 No. C 15-00908 LB,

, at *3 (N.D. Cal. Mar. 16, 2015). To 7 determine whether a plaintiff established good cause, courts consider whether the 8 plaintiff has: (1) identified the Doe defendant with sufficient specificity as a real 9 person who can be sued in federal court; (2) recounted the steps taken to locate and 10 identify the defendant; (3) shown that the action can survive a motion to dismiss; and 11 (4) established that the discovery is reasonably likely to lead to identifying 12 information that will permit service of process. Dhillon v. Does 1–10, No. C 13-1465 13 SI,

, at *1 (N.D. Cal. Sept. 25, 2013) (citing Columbia Ins. Co. v. 14 seescandy.com,

, 578–80 (N.D. Cal. 1999)). Good cause may be found 15 “where the need for expedited discovery, in consideration of the administration of 16 justice, outweighs the prejudice to the responding party.” Assef v. Does 1-10, No. 15- 17 CV-01960-MEJ,

, at *2 (N.D. Cal. May 28, 2015) (quoting 18 Semitool,

). 19 The Court considering Kenrico’s papers and supporting documents, Lapik’s 20 failure to oppose Kenrico’s Motion despite Kenrico delivering a copy of the Motion to 21 the Email Address (Mot. 9.), finds that Kenrico has satisfied the four factors showing 22 good cause. Without leave to conduct this early discovery, Kenrico is unable obtain 23 this basic information necessary to serve Lapik with the Complaint and advance the 24 administration of justice. Lapik will be notified of the subpoenas, as ordered below, 25 and will have an opportunity to respond before Google and Amazon discloses any 26 information. Finally, all information obtained by way of this early discovery shall be 27 used only for the purpose of protecting Kenrico’s rights as set forth in the Complaint, 28 thereby limiting any potential prejudice to Lapik. Accordingly, the Court finds the 1 need for early discovery outweighs any potential prejudice and GRANTS Kenrico 2 leave to serve a subpoena on Google and Amazon, as detailed below. 3 IV. CONCLUSION 4 For the foregoing reasons, the Court GRANTS Kenrico’s motion to serve a 5 subpoena on Google and Amazon. 6 Specifically: 7 1. Kenrico may serve a subpoena pursuant to Federal Rule of Civil 8 Procedure 45 on Google and Amazon to obtain documents sufficient to 9 identify the following for the Email Addresses: contact information 10 (name(s), address(es), telephone number(s), and email address(es)), 11 registrant, and IP address(es) from which the Email Addresses were 12 accessed (the “Identifying Information”). Kenrico must serve Google 13 and Amazon with a copy of this Order attached to the subpoena; 14 2. Google and Amazon shall have 21 days from service of the subpoena to 15 serve Lapik with a copy of the subpoena and this Order. Google and 16 Amazon may serve Lapik using any reasonable means, including written 17 notice sent to the last known address, transmitted either by first-class 18 mail or via overnight service; 19 3. Kenrico, Lapik, Google, and Amazon shall each comply with the Federal 20 Rules of Civil Procedure and Local Rules of this Court regarding any 21 challenge to the subpoena (including objections and motions to quash or 22 modify the subpoena); 23 4. If any motions are brought to quash or otherwise object to the subpoena, 24 Google and Amazon shall preserve the Identifying Information pending 25 resolution of such motions; and 26 27 28 1 5. Any information disclosed to Kenrico in response to the subpoena may 2 be used solely for protecting its rights as set forth in the Complaint. 3 4 IT IS SO ORDERED. 5 6 November 5, 2019 7

9 OTIS D. WRIGHT, Il 10 UNITED STATES DISTRICT JUDGE

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