1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 ERIN K. MAUDE, Case No. 21-cv-08353-VKD

9 Plaintiff, ORDER DENYING WITHOUT 10 v. PREJUDICE RENEWED EX PARTE MOTION FOR EXPEDITED 11 DOES 1 THROUGH 10, DISCOVERY 12 Defendant. Re: Dkt. No. 18

13 14 On November 2, 2021, plaintiff Erin Maude moved ex parte for an order authorizing pre- 15 service discovery. Dkt. No. 6. The Court concluded that Ms. Maude had not demonstrated good 16 cause for the proposed discovery and denied her motion without prejudice. Dkt. No. 11. On 17 January 18, 2022 Ms. Maude filed an amended complaint (Dkt. No. 13) and now renews her 18 motion for an order authorizing service of three document subpoenas (Dkt. No. 18). The Court 19 held a hearing on the renewed motion on March 8, 2022. Dkt. No. 26. 20 Ms. Maude’s amended complaint addresses the deficiencies identified in the Court’s prior 21 order. In addition, Ms. Maude sufficiently describes her prior efforts to identify and locate the 22 missing defendants. However, the Court finds that the subpoenas are not directed discovery that is 23 reasonably likely to yield identifying information about the missing defendant or defendants that 24 would make service of process possible. 25 I. PROPOSED DISCOVERY 26 Ms. Maude asks for permission to serve document subpoenas on Comcast Cable 27 Communications LLC (“Comcast”), Apple Inc. (“Apple”), and Epic Systems Corporation 1 seeks is reasonably likely to lead to information about a missing defendant that would make 2 service of process possible. Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 3 1999). 4 A. Comcast Subpoena 5 Ms. Maude’s proposed subpoena to Comcast asks for: “Any document identifying the 6 Comcast customer using the Internet Protocol address 98.234.10.23 since February 1, 2021, 7 including the name, address, telephone number, email address, and Media Access Control 8 (“MAC”) address associated with use of the Internet Protocol address.” Dkt. No. 19, Ex. A. The 9 renewed motion and supporting materials support Ms. Maude’s contention that a person or entity 10 using IP address 98.234.10.23 accessed her Microsoft email account without authorization on or 11 before February 19, 2021. See Dkt. No. 13 ¶ 17; Dkt. No. 20 ¶ 6. However, Ms. Maude provides 12 insufficient support, by declaration or otherwise, for the scope of the proposed subpoena. First, 13 she provides no information demonstrating that the IP address likely is associated with an 14 unknown defendant, and that it is not instead a public IP address or an IP address used by many 15 unrelated individuals or entities. See, e.g., Strike 3 Holdings, LLC v. John Doe Subscriber IP 16 Address 45.30.93.48, No. 21-cv-02487-VKD (N.D. Cal. Apr. 26, 2021), Dkt. No. 9 at 8–9, Ex. D. 17 Second, Ms. Maude does not explain why she requires identifying information for a more than 18 one-year period from February 19, 2021 to the present when the unauthorized access occurred on 19 an unspecified date or dates on or before February 19, 2021. Third, she does not explain why she 20 requires any information beyond the Comcast subscriber’s name and physical address in order to 21 serve process. 22 B. Apple Subpoena 23 Ms. Maude’s proposed subpoena to Apple asks for: “All documents every identifying [sic] 24 person logged in to Erin K. Maude’s Apple ID account since January 1, 2022, including 25 documents showing Internet Protocol addresses and Media Access Control (“MAC”) addresses.” 26 Dkt. No. 19, Ex. B. The renewed motion and supporting materials support Ms. Maude’s 27 contention that an unknown person or entity gained unauthorized access to some of her Apple 1 18–20. However, the proposed subpoena is not limited to only those documents necessary to 2 identify the missing defendants. She does not explain why she requires “all documents” 3 identifying “every” person logged in to her Apple ID account since January 1, 2022, including all 4 IP addresses and MAC addresses, particularly when the instances of unauthorized access appear to 5 have occurred before that date. Moreover, while Ms. Maude relies on the declaration of Mr. 6 Manship, a technical consultant, in support of her renewed application, Mr. Manship says only 7 that he “would need to have cooperation from ISPs that control the relevant Internet Protocol 8 addresses” and “it would be helpful to have media access control (MAC) addresses to pinpoint the 9 particular devices being used.” Ms. Maude does not explain what information it believes Apple 10 has or how that information would be used to identify a defendant for service of process. 11 C. Epic Subpoena 12 Ms. Maude’s proposed subpoena to Epic asks for: “All documents every identifying [sic] 13 person logged in to Erin K. Maude’s MyChart account since January 1, 2022, including 14 documents showing Internet Protocol addresses and Media Access Control (“MAC”) addresses.” 15 Dkt. No. 19, Ex. C. The renewed motion and supporting materials support Ms. Maude’s 16 contention that an unknown person or entity accessed her medical records in an application called 17 MyChart hosted by or on behalf of her healthcare provider. Dkt. No. 19 ¶ 6; Dkt. No. 20 ¶ 24. It is 18 not clear when the access occurred; Ms. Maude says only that she discovered the access on 19 February 7, 2022. Dkt. No. 20 ¶ 24. However, like the subpoena to Apple, the proposed subpoena 20 to Epic is not limited to only those documents necessary to identify the missing defendants. Ms. 21 Maude does not explain why she requires “all documents” identifying “every” person logged in to 22 her MyChart account since January 1, 2022, including all IP addresses and MAC addresses, 23 particularly when there is no information regarding when the instances of unauthorized access 24 occurred. Similarly, she does not explain how the information she seeks would be used to identify 25 a defendant or defendants for service of process. 26 II. CONCLUSION 27 As Ms. Maude has not shown that the discovery she seeks is limited to obtaining 1 defendants, the Court denies the renewed application without prejudice. If Ms. Maude chooses to 2 submit yet another application for pre-service discovery, she must attach the proposed subpoenas, 3 and for each, she must show how the discovery requested is limited to only the information 4 || necessary to identify and serve the unknown defendants. 5 IT IS SO ORDERED. 6 Dated: March 10, 2022 7 8 Unig win K, □□ □□□□□□□ VIRGINIA K. DEMARCH 9 United States Magistrate Judge 10 11 12

© 15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28