Xfinity Mobile v. Globalgurutech LLC ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Xfinity Mobile, et al., No. CV-22-01950-PHX-SMB 10 Plaintiffs, ORDER 11 v. 12 Globalgurutech LLC, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiffs Comcast OTR1, LLC, Comcast Cable 16 Communications LLC, Xfinity Mobile brand, and Comcast Corporation’s (collectively 17 “Plaintiffs”) Motion for Expedited Discovery. (Doc. 16.) Defendants GlobalGuruTech, 18 LLC, Guru Holdings LLC, and Jakob Zahara (collectively “Defendants”) filed a Response 19 (Doc. 21), and Plaintiffs filed a Reply (Doc. 26). The Court will exercise its discretion to 20 resolve this motion without oral argument. See LRCiv 7.2(f) (“The Court may decide 21 motions without oral argument.”). After reviewing the briefing and relevant law, the Court 22 will deny Plaintiffs’ Motion for Expedited Discovery for the following reasons. 23 I. BACKGROUND 24 This case is about Defendants’ alleged scheme to sell improperly procured cell 25 phones. (See Doc. 16 at 4–5.) Nearly two weeks after filing the Complaint, Plaintiffs 26 moved for expedited discovery. (See Docs. 1; 16.) Plaintiffs seek the Court’s permission 27 to serve non-party subpoenas on third parties Plaintiffs believe are in possession of digital 28 information that they are under no duty to preserve. (Doc. 16 at 1.) 1 II. LEGAL STANDARD 2 Parties generally may not seek discovery before a Rule 26(f) conference unless 3 otherwise authorized by the Federal Rules of Civil Procedure, by stipulation, or by court 4 order. See Fed. R. Civ. P. 26(d)(1). Courts may authorize early discovery “in the interests 5 of justice,” see Fed. R. Civ. P. 26(d)(3) and “where good cause is shown,” see Mach 1 Air. 6 Servs., Inc. v. Mainfreight, Inc., No. CV-14-01444-PHX-SPL, 2015 WL 11181334, at *1 7 (D. Ariz. Mar. 5, 2015). “Good cause may be found where the need for expedited 8 discovery, in consideration of the administration of justice, outweighs the prejudice to the 9 responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. 10 Cal. 2002). Among other factors, courts consider (1) whether a preliminary injunction is 11 pending; (2) the breadth and purpose of the discovery request; (3) the burden on the 12 defendants to comply with such a request; and (4) how far in advance of the typical 13 discovery process the request was made. Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 14 1063, 1067 (C.D. Cal. 2009)). 15 III. DISCUSSION 16 Here, Plaintiffs want to serve non-party subpoenas under Rule 45 for the asserted 17 purpose of preserving digital information that those third parties have no current obligation 18 to preserve. (Doc. 16 at 1, 12.) Those third parties include FedEx, UPS, DHL, Amazon, 19 eBay, PayPal, and Craigslist. (Id. at 12.) Defendants argue Plaintiffs’ request is 20 insufficiently tailored to the parties to be subpoenaed because there is no evidence that 21 Defendants conduct business through FedEx, DHL, Amazon, eBay, or Craigslist. (Id.) 22 Defendants also argue that Plaintiffs’ request is overbroad because Plaintiffs have not set 23 forth the specific information it wants to subpoena. (Doc. 21 at 8.) Plaintiffs request “[a]t 24 the very least” to serve the subpoenas attached to their Reply. (See Doc. 26 at 7, 11 (UPS), 25 16 (Zelle), 21 (PayPal).) 26 The Court notes that Plaintiffs have not filed a motion for a preliminary injunction. 27 In their Motion, Plaintiffs state that expedited discovery would inform them of whether it 28 would file such a motion. (Doc. 16 at 11.) A party’s “mere inclination” to seek a 1 preliminary injunction is generally insufficient to justify expedited discovery. Mach 1, 2 2015 WL 11181334, at *1 (citing Facebook, Inc. v. Various, Inc., No. C-11-01805-SBA 3 (DMR), 2011 WL 2437433, at *3 (N.D. Cal. June 17, 2011)). Plaintiffs do assert they will 4 be irreparably harmed if the companies cited fail to preserve the information they seek to 5 subpoena. (Doc. 16 at 9.) But as discussed below, Plaintiffs do not specify the information 6 they seek. Any harm Plaintiffs are likely to suffer is thus attenuated and speculative. The 7 Court finds this factor favors denying Plaintiffs’ request. 8 The Court generally agrees with Defendants that Plaintiffs’ request is overbroad. 9 The Complaint contains no allegations that Defendants have used or are using FedEx, 10 DHL, Amazon, eBay, or Craigslist to carry out the alleged scheme. In contrast, Defendants 11 acknowledge the evidentiary basis for Defendants’ using UPS and PayPal as part of their 12 business. (Doc. 21 at 8.) Plaintiffs also do not set forth what information it will ultimately 13 subpoena. (See Doc. 16 at 12.) They merely assert that “[t]here is vital information 14 concerning the extent and methods of Defendants’ unlawful activities in the possession of 15 third parties . . . who are being used by Defendants to perpetrate their Scheme.” (Id.) But 16 Plaintiffs never explain what information it seeks, except listing some specific data in three 17 draft subpoenas attached to Plaintiffs’ Reply. See Davis, 673 F. Supp. 2d at 1067 (noting 18 the plaintiff did not identify the topics to be addressed in the early deposition). Defendants 19 highlight Plaintiffs’ citing Facebook and LinkedIn’s—two companies not implicated by 20 the Complaint—privacy policies to illustrate the potential risk of data erasure. (Doc. 21 at 21 9.) The Court agrees that these irrelevant policies do little if anything to establish a risk of 22 spoliation. Taken as a whole, Plaintiffs seek to serve subpoenas on many third parties— 23 some of which are not alleged to have facilitated Defendants’ alleged scheme—for 24 unspecified digital information, based on two irrelevant companies’ privacy policies. The 25 Court finds that the breadth and purpose of Plaintiffs’ request favors denial. 26 Plaintiffs’ Motion is catered to third parties, which means Defendants would carry 27 no burden to comply with Plaintiffs’ request. This factor thus favors granting Plaintiffs’ 28 request. Plaintiffs made this request before Defendants responded to the Complaint via || their Motion to Dismiss. The Court does not find the timing of Plaintiffs’ request to favor 2|| or disfavor granting their request. 3 After considering all relevant factors, the Court will deny Plaintiffs’ Motion. 4|| Plaintiffs offer only mere speculation as to whether the third parties in their Motion have 5 || information that would be relevant to their claims. Furthermore, Plaintiffs did not tailor || their requests except when preparing an exhibit to their Reply. Any burden to Defendants || would be minimal, but the Court nonetheless finds no good cause to permit Plaintiffs to 8 || conduct expedited third party discovery. 9 IV. CONCLUSION 10 Accordingly, 11 IT IS ORDERED denying Plaintiffs’ Motion for Expedited Discovery. (Doc. 16.) 12 Dated this 8th day of June, 2023. 13 14 a . ~P 15 SO □ 16 Gnted States District lodge 17 18 19 20 21 22 23 24 25 26 27 28 -4-