Professional Documents
Culture Documents
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v.
STEFAN DELGADO ARGOTE a/k/a ,
Ohm and Burberry; MATTHIAS
OLTMANN a/k/a Joduskame,
Rolle3k, and Sheppard; TYRONE
TOM PAUER a/k/a Beaving;
CHACHANI MISTI Y PICHU PICHU
S.R.L., a company organized under the
laws of Peru; and DOES 1-10,
inclusive,
Defendants.
DEFENDANTS OPPOSITION TO
PLAINTIFFS EX PARTE
APPLICATION FOR LEAVE TO
TAKE LIMITED IMMEDIATE
DISCOVERY
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36562206
TABLE OF CONTENTS
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Page
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I.
INTRODUCTION ...............................................................................................1
II.
III.
ARGUMENT.......................................................................................................3
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A.
B.
C.
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IV.
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V.
CONCLUSION .................................................................................................11
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-iDEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
TABLE OF AUTHORITIES
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Page(s)
CASES
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- iii DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
I.
INTRODUCTION
Plaintiff Riot Games, Inc. (Riot) already has all the information it needs to
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proceed with its lawsuit against each of the named defendants, and has already been
informed that the named defendants are complying with their document preservation
obligations under the Federal Rules. There is no emergency. Rather, Riot appears to
be trying to take advantage of the fact that the defendants are located overseas and
attempting to engage the Court through ex parte proceedings before defendants have
even been served with process. Indeed, Riot first tried to file this ex parte application
without informing counsel for the defendants that it was coming, even though counsel
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for both parties had discussed this case on the phone hours before the first application
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was filed. Riot withdrew that application (as it had to, for failure to comply with the
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Local Rules), but then re-filed it despite information and assurances provided by
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Misti y Pichu Pichu S.R.L. (Chachani) and those responsible for Chachani. Simply
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stated, Riots highly unusual ex parte application (the Application) tries to create
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an issue where there is none. It should be denied because it fails to show that Riot
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has made a good faith effort to comply with the requirements of service of process
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II.
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mere 24 days ago. Each Defendant is located outside the United States (Chachani in
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Peru and the individual defendants in Germany). The complaint alleges three counts:
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Act (DMCA); intentional interference with contract; and unfair competition. (Dkt.
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No. 1.) To date, none of the Defendants have been served with process nor have
-1DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
The Application is essentially the same ex parte application Riot filed earlier in
the week which failed to comply with Local Rule 7-19. Specifically, Riot never
raised the application with Defendants counsel prior to its filing, despite that counsel
for both parties had a telephone conversation about the case hours before the
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In the days leading up to Riots filing of the current Application, counsel for
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the parties discussed the grounds for Riots request for early discovery and whether
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counsel for Defendants could accept service of the complaint and/or provide more
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explained that he did not have the authority to accept service but pointed out that Riot
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director, business activities, and alternate names. Id., 5, 6 & Ex. A. Specifically,
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Defendants counsel noted that the U.K. complaint attached to the attorney
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Rosalino Prado Lira as Chachanis director and that the name CHAMISPI appears
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counsel also noted that a Google search on CHAMISPI and Jaime Rosalino Prado
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Lira returns a website showing that CHAMISPI and Chachani share the same
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address in Peru and that Mr. Lira is CHAMISPIs Gerente General. Id., 6, Ex. B.
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Counsel for Defendants asked whether Riot had attempted to locate and serve
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Mr. Lira, but Riots counsel did not give a clear answer one way or another. Id., 6.
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Defendants counsel also advised Riots counsel that Defendants were aware of
their obligations to preserve documents and electronically stored information. Id.,
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TO TAKE LIMITED IMMEDIATE DISCOVERY
postings from public view was a standard practice for web forums where, for
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preservation, Riot re-filed its Application on Friday, August 26, seeking the same
appears to be little more than a misguided effort by Riot to make an end run around
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III.
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ARGUMENT
Rule 26(d) of the Federal Rules of Civil Procedure provides that [a] party may
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not seek discovery from any source before the parties have conferred as required by
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order. Fed. R. Civ. P. 26(d). Courts in the Ninth Circuit apply a good cause test in
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conference, i.e. expedited discovery. See Am. LegalNet, Inc. v. Davis, 673 F. Supp.
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2d 1063, 1066 (C.D. Cal. 2009) ([C]ourts may permit expedited discovery before the
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Rule 26(f) conference upon a showing of good cause (internal citation omitted)).
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The party seeking the expedited discovery bears the burden of showing good cause.
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Patrick Collins, Inc. v. John Does 1 through 37, 2012 WL 2872832, at *2 (E.D. Cal.
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are inherently unfair, and they pose a threat to the administration of justice. Mission
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Power Engg Co. v. Continental Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995); In
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re Intermagnetics America, Inc., 101 B.R. 191, 192-93 (C.D. Cal. 1989). A litigant
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can so deviate only upon a showing of irreparable prejudice and a lack of fault or at
-3DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
least excusable neglect. Mission Power, 883 F. Supp. at 492. Those circumstances
are rare, but they can arise when a real emergency exists, notice would allow an
adversary to flee or destroy evidence, or the matter relates to a motion for an order
shortening time where an exigency arises by no fault of the moving party. Id.
Riot has not and cannot make the required showing. Riot has not shown that it
procedures, nor has it shown that it is proceeding ex parte due to no fault of its own.
On the contrary, Riot has ignored information that has been available to it since prior
to the filing of its first ex parte application. In fact, by refiling this Application
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to Riot, the only thing Riot has done is feign ignorance. Because Riot makes no
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exists allowing it to go to the head of the line in front of all other litigants and
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receive special treatment, Mission Power, 883 F. Supp. at 492, this Application
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should be denied.
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To the extent that Riot later identifies other parties it wishes to add as
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defendants to this case, the Federal Rules of Civil Procedure provide a way for Riot
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to do this. See Fed. R. Civ. P. 15(a) (Leave to amend shall be freely give[n] when
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justice so requires.). The fact that there may be other doe defendants does not, by
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A.
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Riot knows more about Chachani than it lets on in its Application, and appears
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discovery procedures set forth in the Federal Rules. Riots statement that
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Defendants counsel has refused to provide any information concerning the identity
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of the individuals behind Chachani (Ex Parte App. (App.) at 9-10) is misleading
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at best: Riot knows the name of Chachanis director and Defendants counsel
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TO TAKE LIMITED IMMEDIATE DISCOVERY
expressly pointed this out. Nishimoto Decl., 6. More specifically, Riot is aware of
two days before Riot re-filed its Application and which Chachanis director has
with company number 11298751 and that has its registered office at
Avenida Siglo XX nr 110-C, third floor, office 302, Arequipa, 040101. See
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Jaime Rosalino Prado Lira is Chahanis director. See Lira Decl., 2; Mayer
Decl., Ex. 2 at 21.
Chachani does business under the name CHAMISPI, which is an
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acronym for Chachani Misti y Pichu Pichu S.R.L. Lira Decl., 3; Mayer
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company that may not actually exist and that it is a smokescreen used by
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anonymous individuals to conceal their identity. See App. at 5, 13. If there is any
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smokescreen here, it is the one Riot is creating. Riot has been less than transparent
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with the information in its possession and cannot show how the information set forth
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above is insufficient to identify those responsible for the software program at issue in
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-5DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
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B.
Riot argues that the expedited discovery is necessary because, in the time it
will take to complete service on Chachani, evidence may be lost or destroyed, server
logs will disappear in the normal course of business, and the unknown defendants
may escape identification altogether. App. at 2, 13. In support of this, Riot argues
that Defendants are actively destroying evidence based on assertions that accounts
belonging to Mr. Argote, Mr. Pauer, and Mr. Oltmann have been removed from
LeagueSharp forums and that announcements have been removed from the website.
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preserve documents and electronically stored information under the Federal Rules.
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Lira Decl., 5; Nishimoto Decl., 7. Counsel for Defendants told this to Riots
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counsel two days before Riot re-filed its Application. Nishimoto Decl. 7. With
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regard to Riots argument that posts are being deleted from web forums (App. at 13),
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Mr. Lira has confirmed that posts that violate Chachanis policies are hidden from
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public view but are otherwise preserved. Lira Decl., 6 & Ex. A. In light of this,
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Riot fails to make the necessary showing of good cause for the expedited discovery it
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seeks, let alone the extraordinary showing that it must make to support relief on its ex
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parte application.
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Chachani before Riot can complete service on it. App. at 13. Riot offers no evidence
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showing this to be a particular threat in this case (the attorney declaration simply
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muses that it is possible that those responsible for LeagueSharp might elect to
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abandon Chachani and create a new entity while service is pending). See Mayer
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Decl., 14. Neither does Riot offer any authority that this possibility somehow
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supports ex parte relief. Instead, Riot implies that Chachani is operating with illicit
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intent by using a service called Cloudflare to hide the identity and location of their
-6DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
in Germany, and under the auspices of a series of Peruvian corporations (App. at 1),
and by being represented by various counsel in California, Germany, and the United
by companies worldwide to protect against DDoS attacks (i.e., attacks on the server
network to render it unusable), including by Riot itself for its League of Legends
game. See Nishimoto Decl., 8, Ex. C. The .me domain is the Internet country
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code top level domain for Montenegro and is operated by doMEn, a Montenegro-
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based company. See id., 9, Exs. D, E. Using this domain allows for the .me
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Peruvian corporations that Riot complains of, this appears to be nothing more than a
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Defendants are represented by counsel in California is explained by the fact that Riot
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sued them in California. The individual defendants reside in Germany and retained
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German counsel to respond to cease and desist letters sent to them by Riot. See
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Mayer Decl., Ex. 1. And Chachani enforced its rights in the UK courts in 2015 in an
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action brought by UK counsel. See id., Ex. 2. None of this justifies the extraordinary
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relief sought by Riot. See Mission Power Engg Co, 883 F. Supp. at 490
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([D]erogatory allegations about an opponent in [ex parte] motion papers raise ethical
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problems for the lawyers and the court to the extent that the allegations are subjective
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simply make allegations that have no supporting evidence to back them up.)
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Riot also argues that if it later identifies other individuals in foreign countries
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that it wants to add as defendants to this case, then it could take more time to effect
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-7DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR LEAVE
TO TAKE LIMITED IMMEDIATE DISCOVERY
service on those individuals. Again, Riot offers no authority showing how this mere
Inc. v. Doe, which involved a suit brought against unknown individuals who were
4104214, *5 (N.D. Cal. Sept. 2, 2008). As the court explained in that case, Plaintiffs
have no ability to determine a defendants true name other than by seeking the
information from the ISP (id. at *2) and, accordingly, granted limited, early
discovery to learn identifying information of users associated with the offending ISP
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addresses. Id. at *5-6. Here, Riot has already identified each of the Defendants it is
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suing and knows the name of Chachanis director. Riot is notas it alleges
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somehow unable to pursue its lawsuit absent its emergency request for expedited
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discovery. See Hard Drive Prods., Inc. v. Doe, 2012 WL 90412, at *2-3 (E.D. Cal.
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Jan. 11, 2012) (denying plaintiffs ex parte application for leave to take expedited
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discovery, where plaintiff had already discovered the name and contact information
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of the account holder of the IP address involved and could simply name the account
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Defendants, who have not been served with process and who have not appeared in
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this litigation. Moreover, the fact that this application was brought on an ex parte
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basis and not as a regularly noticed motion further prejudices Defendants ability to
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fully and completely respond to the arguments raised by Riot. As this Court has
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previously observed:
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Mission Power Engg Co, 883 F. Supp. at 490. Riot also mischaracterizes its
categories of documents requested (22 categories across all four subpoenas) are broad
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C.
Even setting aside the fact that Riot has not made the extraordinary showing
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that it is entitled to emergency relief in this ex parte application, Riot has also failed
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seeking early discovery, Plaintiff must demonstrate that it has made a good faith
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effort to comply with the requirements of service of process and specifically identify
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defendants. Skout, Inc. v. Jen Processing, Ltd., 2014 WL 3897166, at *2 (N.D. Cal.
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August 7, 2014). Here, Riot admits that it has not completed service on any of the
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Defendants and that it has not even completed obtaining certified translations of each
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initiating document. Mayer Decl., 12. Moreover, Riot refuses to acknowledge the
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fact that Mr. Lira is Chachanis director, and that Chachani is responsible for the
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Riot lists several cases in a footnote that Riot says permitted early discovery
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for the purpose of identifying anonymous or Doe defendants. App. at 8 & n.3.
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These cases are not on point. In several of the cases, the appellate court found the
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district court to have abused its discretion in dismissing plaintiffs complaint without
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first giving plaintiff a fair opportunity to learn the true identity of the defendant
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through discovery. See Gillespie v. Civiletti, 620 F.2d 637, 642 (9th Cir. 1980)
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TO TAKE LIMITED IMMEDIATE DISCOVERY
(finding an abuse of discretion where the district court dismissed the complaint
incarcerated); Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997) (finding an
abuse of discretion where the district court dismissed the complaint without requiring
the City to respond to interrogatories seeking to identify the officer who allegedly
assaulted plaintiff); Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985) (finding that
the district court erred in dismissing plaintiffs excessive force claim, stating that
[d]ismissal is proper only when it appears that the true identity of the defendant
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omitted)); Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980) (reversing district
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courts dismissal of plaintiffs complaint, reasoning that plaintiff should have been
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dismissal of Riots complaint is not at issue (the complaint was filed just 24 days
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ago). As litigation progresses, Riot will have at its disposal a number of discovery
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tools to learn the information it seeks, including third-party subpoenas. Denial of this
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that those cases involved plaintiffs seeking limited expedited discovery in order to
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aliases. See e.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal.
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1999) (assignee permitted to make request for limited discovery to ascertain identities
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information of users associated with offending ISP addresses). In those cases, the
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courts noted that [p]arties who have been injured by [tortious acts committed over
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the Internet] are likely to find themselves chasing the tortfeasor from Internet Service
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Provider (ISP) to ISP, with little or no hope of actually discovering the identity of the
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TO TAKE LIMITED IMMEDIATE DISCOVERY
tortfeasor. Seescandy.com, 185 F.R.D. at 578; see also UMG Recordings, Inc, 2008
WL 4104214, at *5-6 (discussed above). Here, Riot knows the identity of the
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208 F.R.D. 273, 275-77 (N.D. Cal. 2002). Semitool was a patent infringement case
where plaintiff sought expedited discovery of core technical documents for the
Local Rules for the Northern District of California. Id. at 276. Here, Riot does not
need additional discovery to proceed under the Local Rules or the Federal Rules of
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Civil Procedure.
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IV.
OBJECTION TO EVIDENCE
Defendants object to the purported English translations of the German letters
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attached as Exhibit 1 to the Mayer Declaration on the grounds that these purported
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V.
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CONCLUSION
Based on the foregoing, Defendants request that this Court deny Riots ex parte
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