Scarinci Hollenbeck, LLC Convinces Court to Compel Google and GoDaddy to Provide Pre-Action Discovery

Pre-action discovery allows a plaintiff to obtain discovery prior to the commencement of an action to preserve information or aid the plaintiff in bringing an action. Obtaining the identity of the person to whom the complaint should be brought may necessitate the need for pre-action discovery. In order to obtain court-ordered pre-action discovery to identify a defendant, the plaintiff is required to demonstrate the existence of a meritorious cause of action against the defendant, as well as the materiality and necessity of obtaining the information.

This article discusses GSB Gold Standard Corporation AG v. Google LLC and GoDaddy Inc., (160880/2022), a case in which Plaintiff GSB Gold Standard Corporation AG (“GSB”, the “Company” or “Petitioner”) was granted an order to show cause under Section 3102(c) of the New York State Civil Practice Law and Rules (“CPLR”) compelling pre-action disclosure by Google LLC (“Google”) and GoDaddy Inc. (“GoDaddy”) to obtain the information indicating the identity of owners of an online publication that was producing defamatory content about GSB.

New York CPLR

Section 3102(c) of the CPLR permits a plaintiff to obtain discovery “before an action is commenced . . . to aid in bringing an action . . . by court order.” CPLR Section 3102(c). When a plaintiff moves for pre-action discovery, plaintiff must demonstrate that “it has a meritorious cause of action and the information sought is material and necessary to the actionable wrong.” Dyer v. Canaccord Genuity LLC, 2022 NY Slip Op 34136(U), ¶ 2 (Sup. Ct.). The plaintiff bears the burden “to present facts fairly indicating a cause of action against the adverse party.” Goldstein v. N.Y. Daily News, 106 A.D.2d 323, 325, 482 N.Y.S.2d 768, 771 (App. Div. 1st Dept. 1984).

However, New York courts have imposed a limitation on pre-action discovery by prohibiting a plaintiff from using such to determine whether plaintiff has a viable cause of action. Garcia v. Trident Gen. Contracting LLC, 2022 NY Slip Op 34154(U), ¶ 3 (Sup. Ct.).

Courts have long upheld that pre-action discovery “is not permissible as a fishing expedition to ascertain whether a cause of action exists. Id. Further, pre-action discovery is not permissible when the plaintiff “has sufficient information to frame [his] complaint,” including potential defendants and/or the time and place of the accident. Curtis v. City of N.Y., 2022 NY Slip Op 34015(U), ¶ 3 (Sup. Ct.) (quoting Holzman v. Manhattan & Bronx Surface Transit Operating Auth., 271 A.D.2d 346, 347, 707 N.Y.S.2d 159, 161 (App. Div. 1st Dept. 2000)).

The purpose of limiting pre-action discovery is to “prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party.” Curtis v. City of N.Y., 2022 NY Slip Op 34015(U), ¶ 3 (Sup. Ct.) (quoting Stewart v New York City Transit Authority, 112 AD 2d 939, 940, 492 N.Y.S.2d 459 (2d Dept 1985)). When a court determines that “the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate.” Id.

GSB Gold Standard Corporation AG v. Google LLC and GoDaddy Inc.

In GSB, the Court granted an order to show cause and petition filed by GSB to obtain pre-action discovery from Google and GoDaddy (collectively referred to as the “Respondents”) pursuant to CPLR Section 3102(c).

GSB sought court approval to serve a subpoena on both Google and GoDaddy to compel the production of all documents containing the information as to the identity of the unknown individual or individual(s) who registered the website www.behindmlm.com and has published defamatory statements about GSB.

Background

In the spring of 2022, GSB discovered that an unknown individual or individual(s) operating www.behindmlm.com (the “BehindMLM Website”) made numerous defamatory publications on the site regarding GSB and its personnel, harming GSB’s name, brand, and reputation.

While GSB was able to preclude publication of these statements in Germany by successfully obtaining injunctive relief in German courts, the defamatory conduct has persisted outside of Germany, GSB turned to Scarinci Hollenbeck, LLC who, through quick analysis, determined the website was being hosted by Google and the domain owned by GoDaddy through entities linked to the U.S. Scarinci Hollenbeck, LLC used this information to quickly seek pre-action discovery through a New York court.

The Court’s Decision

The Court granted GSB’s order to show cause and Google and GoDaddy were ordered to respond to their respective subpoenas providing all documents containing the information as to the identity of the unknown individual(s) of the BehindMLM Website.

Conclusion

If you’re facing online reputational harm from an unknown source, CPLR Section 3102(c) is an advantageous tool and often underutilized. SH-Law has successfully utilized this tool often at minimal cost to our clients.