EFiled: May 11 2016 04:00PM EDT

Transaction ID 58993931
Case No. N16C-05-111 CLS

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY
DAVID GRIMALDI,

)
)
Plaintiff,
)
)
v.
)
)
JANE DOE aka VERONICA
)
HOBSON aka VICTORIA
)
SUMMERS,
)
)
Defendant. )

C.A. No.
JURY TRIAL DEMANDED

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.
must:

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

(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

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).
2
1

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 preservice 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 yearold 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

In his affidavit, attached hereto, plaintiff explains how he discovered the

relevant IP addresses.
2

the defamatory assertions set forth in paragraphs 2 and 4 of the Complaint. 3

Defendants 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)).

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).
3

Plaintiff has preserved the audio in the event the YouTube page is suddenly
removed.
4
4

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

EFiled: May 11 2016 04:00PM EDT

Transaction ID 58993931
Case No. N16C-05-111 CLS

Exhibit A

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

2010 WL 5115670
Only 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 225, individuals, Defendants.
No. C 1004545 LB.
|
Dec. 9, 2010.
Attorneys and Law Firms
Julio Cesar Avalos, Thomas Harold Zellerbach, Orrick
Herrington & Sutcliffe LLP, Menlo Park, CA, for Plaintiff.

ORDER GRANTING PLAINTIFF'S MOTION FOR

EARLY DISCOVERY AND ORDERING DISCOVERY
LAUREL BEELER, United States Magistrate Judge.
I. INTRODUCTION
*1 On October 7, 2010, Plaintiff Zoosk, Inc. filed a
Complaint alleging libel per se, trade libel, and intentional
interference with prospective economic advantage against
25 Doe defendants, alleging in part that they mounted a
defamatory campaign against Zoosk. Complaint, ECF No.
1. Zoosk previously asked for, and the court granted, leave
to take limited early discovery from third-party internet
service providers (ISPs) to discover the identity of the Doe
defendants. See ECF Nos. 68. Two of the ISPs (Comcast
Corporation and Time Warner Cable) responded to Zoosk's
subpoenas, saying that they had identifying information and
were willing to produce it with a court order. ECF No. 9 at
2. Comcast provided a draft order, and Zoosk asks the Court
to issue it. Id.
The court finds good cause, grants Zoosk's motion for early
discovery, and orders Comcast and Time Warner to produce
identifying information for the IP addresses at issue in a
manner consistent with this order.

II. FACTS
According to Zoosk's complaint, an individual created a
profile on Zoosk's online social dating network under the
name Nita Nielsen, posted nude pictures of herself, and
advertised her website, where she described herself as an
adult entertainer, professional consort, and au fait fellatrix.
Complaint, ECF No. 1 at 1, 45, 1, 13, 1819. Zoosk
determined that the account violated its term's of use policy
and permanently blocked the account. Id. at 45, 2021. A
user or users then created a Twitter account under the name
Squirrel Juice and began posting allegedly defamatory
statements about Plaintiff. Id. at 56, 2228. When one of
Zoosk's employees contacted Squirrel Juice via Twitter and
asked the basis for the comments, an individual responded
using the e-mail address carsondyle1@gmail .com and stated
that he would continue to discourage people from using
Zoosk's service. Id. at 6, 2931. The individual also posted
Zoosk's employee's e-mail address on Twitter. Id. at 7, 32.
On October 9, 2009, Zoosk sent a cease and desist letter
to carsondyle1@gmail.com. Id. at 7, 33. According to
Zoosk, the defendants have continued to make defamatory
statements. Id.
Based on publicly-available information and information
from Twitter, Inc., Zoosk determined that eight distinct
IP addresses accessed the Squirrel Juice Twitter account.
Declaration of Julio Avalos, ECF No. 7 at 3, 9 (listing the IP
addresses and the ISPs). On October 18, 2010, Zoosk asked
the court to authorize limited early discovery in the form of
subpoenas to the ISPs for personal identifying information
and contact information for the users of the IP addresses.
Motion for Early Discovery, ECF No. 6 at 45; Proposed
Subpoena, ECF No. 71 at 8. The subpoena identified contact
information such as name, email address, telephone number,
IP address, credit card information, and/or physical address.
ECF No. 71 at 7. On October 22, 2010, the court authorized
the subpoenas. ECF No. 8.
*2 Five of the addresses are owned by ISP Road Runner
HoldCo LLC (a d/b/a for Time Warner), and one is owned
by ISP Comcast. ECF No. 6 at 4; ECF No. 9 at 3. Citing 47
U.S.C. 551, both ISPs told Zoosk that they had responsive
information to the subpoena and would provide it with a court
order. ECF No. 9 at 23. Comcast provided a draft order to
Zoosk. Id. at 2; ECF No. 91. Zoosk then asked this court to
issue the order.

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

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

II. DISCUSSION
A. Early Discovery
A court may authorize early discovery before the Rule 26(f)
conference for the parties' and witnesses' convenience and
in the interests of justice. Fed.R.Civ.P. 26(d). Courts in this
district generally consider whether a plaintiff has shown
good cause for the early discovery. See, e.g., IO Group,
Inc. v. Does 165, No. C 104377 SC, 2010 WL 4055667, at
*2 (N.D.Cal. Oct.15, 2010); Solarbridge Tech. v. John Doe,
No. C1003769 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 apply
the same standard. See, e.g., Texas Guaranteed Student Loan
Corp. v. Dhindsa, No. C 100035, 2010 WL 2353520, at * 2
(E.D.Cal. June 9, 2010); United States v. Distribuidora Batiz
CGH, S.A. De C. V., No C 07370, 2009 WL 2487971, at *10
(S.D.Cal. Aug. 10, 2009); Yokohama Tire Crop. v. Dealers
Tire Supply, Inc., 202 F.R.D. 612, 61314 (D.Ariz.2001)
(collecting cases and standards).
When the identity of defendants is not known before a
complaint is filed, a plaintiff should be given an opportunity
through discovery to identify the unknown defendants, unless
it 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 WL
2487971 (quoting Gillespie v. Civiletti, 629 F.2d 637, 642
(9th Cir.1980)). In evaluating whether a plaintiff establishes
good cause to learn the identity of Doe defendants through
early discovery, courts examine whether the plaintiff (1)
identifies the Doe defendant with sufficient specificity that
the court can determine that the defendant is a real person who
can be sued in federal court, (2) recounts the steps taken to
locate and identify the defendant, (3) demonstrates that the
action can withstand a motion to dismiss, and (4) proves that
the discovery is likely to lead to identifying information that
will permit service of process. Io Group, 2010 WL 4055667
at * 1; Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573,
57880 (N.D.Cal.1999).
In this case, Zoosk has good cause for early discovery. First,
Zoosk identified the possible Doe defendants with sufficient
specificity by identifying the eight IP addresses using the
Twitter account Squirrel Juice. Avalos Declaration, ECF
No. 7 at 23, 59. Second, Zoosk identified the affirmative
steps it took to determine the Doe defendants' identities using

publicly-available information. Id. at 23, 68. Zoosk also

contacted the Doe defendants by Twitter and by email and
sent a cease-and-desist letter. Complaint, ECF No. 1 at 5
7, 2233. Third, Zoosk pleaded its claims with sufficient
particularity to withstand a motion to dismiss. Complaint,
ECF No. 1. Fourth, the ISPs both said they have identifying
subscriber information for the IP addresses that were involved
in the allegedly defamatory campaign. Avalos Declaration,
ECF No. 7 at 2, 7.
*3 Because the early discovery will reveal identities of the
Doe defendants, good cause exist for early discovery. See
Semitool, Inc., 208 F.R.D. at 276.

2. Order to ISPs
According to Comcast and Time Warner, they will disclose
the information if the court issues an order. ECF No. 101 at
4 (citing 47 U.S.C. 551, the Cable Communications Policy
Act). Section 551 provides that a cable operator may disclose
personal identifying information of a subscriber pursuant to a
court order authorizing the disclosure. 47 U.S.C. 551(c)(2)
(B). Here, because early discovery is authorized under Rule
26(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 Cable
Communications, LLC, and Time Warner Cable (d/b/a Road
Runner HoldCo LLC) (collectively, the ISPs) to obtain
the identity of Doe defendants previously authorized in this
court's order on October 22, 2010. See ECF No. 8. The
procedure is as follows.
1. Zoosk shall serve subpoenas on the ISPs along with a copy
of this Order.
2. The ISPs will have 15 days from the date of service upon
them to serve the subscribers of the IP addresses with a copy
of the subpoenas and a copy of this Order. Zoosk's proposed
order contemplates, and the court orders here, that the ISPs
may provide notice using any reasonable means, including
written 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 of
service upon them to file any motions in this court contesting

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

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

the subpoena (including a motion to quash or modify the

subpoena). If that 30day period lapses without a subscriber
contesting the subpoena, the ISPs shall have 10 days to
produce the information responsive to the subpoena to Zoosk.
4. Zoosk's proposed order contemplates, and the court orders
here, that Zoosk shall pay the ISPs all reasonable costs
of: (A) compiling the requested information; (B) providing
pre-disclosure notifications to subscribers; and (C) all other
reasonable costs and fees incurred responding to discovery.
End of Document

Comcast and Time Warner shall provide Zoosk with the

amount of this reasonable payment upon the termination of
the targeted subscriber's 30day notice period.
IT IS SO ORDERED.

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

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

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

EFiled: May 11 2016 04:00PM EDT

Transaction ID 58993931
Case No. N16C-05-111 CLS

Exhibit B

Exhibit 1

Exhibit 2

73.233.240.36 | IP Address in United States, Delaware

1 of 6

http://73.233.240.36.ipaddress.com/

Information

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

Advertisements

hub-scan.com/custom-tailored-demo

qualys.com/IP-Check

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

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

5/10/2016 5:43 PM

73.233.240.36 | IP Address in United States, Delaware

2 of 6

http://73.233.240.36.ipaddress.com/

City:

Wilmington

Country:

United States

State:

Delaware

Postal Code:

19808

Timezone:

America/New_York

Local Time:

05/10/2016 05:42 PM
Top of the Pag

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

5/10/2016 5:43 PM

Exhibit 3

70.215.69.147 | IP Address in United States, Delaware

1 of 6

http://70.215.69.147.ipaddress.com/

Information

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

Advertisements

hub-scan.com/custom-tailored-demo

go.digital.ge.com/Predix

A more detailed IP address report for 70.215.69.147 is below. At the time you pulled this report, the time zone of
70.215.69.147 is America/New_York, and the current local time of 70.215.69.147 is 10.05.2016 17:49:40. More IP de
of 70.215.69.147 are shown below along with a location of the address on a map.

IP Lookup Result for 70.215.69.147

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

5/10/2016 5:49 PM

70.215.69.147 | IP Address in United States, Delaware

2 of 6

http://70.215.69.147.ipaddress.com/

City:

Hockessin

Country:

United States

State:

Delaware

Postal Code:

19707

Timezone:

America/New_York

Local Time:

05/10/2016 05:49 PM
Top of the Pag

70.215.69.147 Reverse IP | Websites on the same Webhosting

We found 0 hostnames for IP Address 70.215.69.147 (http://70.215.69.147.ipaddress.com/#ipinfo)

Top of the Pag

Map location for IP Lookup Result for 70.215.69.147

5/10/2016 5:49 PM

Exhibit 4

71.123.45.206 | IP Address in United States, Delaware

1 of 6

http://71.123.45.206.ipaddress.com/

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

A more detailed IP address report for 71.123.45.206 is below. At the time you pulled this report, the time zone of
71.123.45.206 is America/New_York, and the current local time of 71.123.45.206 is 10.05.2016 17:51:19. More IP de
of 71.123.45.206 are shown below along with a location of the address on a map.

IP Lookup Result for 71.123.45.206

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

5/10/2016 5:51 PM

71.123.45.206 | IP Address in United States, Delaware

2 of 6

http://71.123.45.206.ipaddress.com/

City:

Wilmington

Country:

United States

State:

Delaware

Postal Code:

19809

Timezone:

America/New_York

Local Time:

05/10/2016 05:51 PM
Top of the Pag

71.123.45.206 Reverse IP | Websites on the same Webhosting

We found 0 hostnames for IP Address 71.123.45.206 (http://71.123.45.206.ipaddress.com/#ipinfo)

Top of the Pag

Map location for IP Lookup Result for 71.123.45.206

5/10/2016 5:51 PM

Exhibit 5

DelawareLiberal.netcomment
http://www.delawareliberal.net/2016/04/21/more
shenanigansintomgordonsnccogovernment/

EFiled: May 11 2016 04:00PM EDT

Transaction ID 58993931
Case No. N16C-05-111 CLS

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY
DAVID GRIMALDI,

)
)
Plaintiff,
)
)
v.
)
)
JANE DOE aka VERONICA
)
HOBSON aka VICTORIA
)
SUMMERS,
)
)
Defendant. )

C.A. No.
JURY TRIAL DEMANDED

[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 PreService Discovery, to defendant Jane Doe through any known Facebook and Twitter
accounts identified as belonging to Veronica Hobson or Victoria Summers.

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.
2

__________________________________
J.