United States District Court, S.D. New York
DR. MUHAMMAD MIRZA and ALLIED MEDICAL AND DIAGNOSTIC SERVICES, LLC, Plaintiffs,
JOHN DOES #1-2, Defendant.
ABRAMS, United States District Judge
December 31, 2019, Plaintiffs Dr. Muhammad Mirza and Allied
Medical and Diagnostic Services, LLC filed this action
against two unidentified defendants ("John Does
#1-2" or the "Doe defendants"), alleging that
Defendants published "defamatory reviews ... on Yelp.com
regarding Plaintiffs," and asserting claims for
defamation and tortious interference with contracts.
See Compl., Dkt. 4 ¶ 1. Plaintiff Mirza is a
medical doctor and Allied Medical and Diagnostic Services,
LLC is his medical practice. Id. ¶¶ 4, 11.
The allegedly defamatory reviews pertain to those posted on
Yelp.com by "disgruntled . . . patients" regarding
Plaintiff Mirza's application of Botox injections. On
January 6, 2020, Plaintiffs filed a letter motion, seeking
permission to conduct expedited discovery from third-party
internet service providers, including Yelp.com, in order to
identify the names and contact information of the Doe
defendants. Dkt. 6.
considering whether to grant a motion for expedited discovery
prior to the Federal Rules of Civil Procedure Rule 26(f)
conference, courts apply a 'flexible standard of
reasonableness and good cause.'" adMarketplace,
Inc. v. Tee Support, Inc., No. 13 Civ. 5635 (LGS), 2013
WL 4838854, at *2 (S.D.N.Y. Sept. 11, 2013) (quoting
Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241
(S.D.N.Y. 2012)). Courts in this district generally find that
this standard is met when "the plaintiff has stated a
prima facie case and is unable to identify the defendants
without a court-ordered subpoena." Id.
minimum, Plaintiffs have established a prima facie case with
respect to their defamation claim. To state a claim for
defamation under New York law, a plaintiff must show: (1)
"a false and defamatory statement of and concerning the
plaintiff; (2) "publication by defendant of such a
statement to a third party"; (3) "fault on part of
the defendant"; and (4) "injury to plaintiff."
Id. (quoting Idema v. Wager, 120 F.Supp.2d
361, 365 (S.D.N.Y. 2000) affd, 29 Fed.Appx. 676 (2d
Cir. 2002)). Plaintiffs allege that the Doe defendants have
published false statements about Plaintiff Mirza's Botox
practice, or caused such false statements to be published, on
Yelp.com, and that this publication is causing injury to
Plaintiffs. This is sufficient for these purposes. See
New York law, "to prove a claim for tortious
interference with contracts, a plaintiff must show '(1)
the existence of a valid contract between plaintiff and a
third party; (2) the defendant's knowledge of that
contract; (3) the defendant's intentional procuring of
the breach; and (4) damages.'" Advance Watch
Co., Ltd. v. Pennington, No. 13-CV-8169 (JMF), 2014 WL
5364107, at *5 (S.D.N.Y. Oct. 22, 2014). Although Plaintiffs
state in their letter that they have established the required
prima facie case for tortious interference with contracts,
they cite no authority to support that proposition.
See Dkt. 6 at 3. Without more, it is not clear that
Plaintiffs have in fact established "the existence of a
valid contract between" themselves and their
"patients, customers, and vendors," as they allege
in somewhat conclusory fashion. See Compl. ¶
40. The Court therefore takes no position on whether
Plaintiffs have established a prima facie case for their
tortious interference claim.
Plaintiffs have established a prima facie case for their
defamation case, though, the Court concludes that there is
good cause to allow some expedited discovery in this case.
Indeed, "without it, Plaintiff[s] will not be able to
ascertain the identifies of the Doe defendants or to effect
service upon them." Malibu Media, LLC v. John Does
1-5, No. 12 Civ. 2950 (JPO), 2012 WL 2001968, at *1
(S.D.N.Y. June 1, 2012). The Court thus grants
Plaintiffs' request as to Yelp.com.
have not specified, however, the other "additional third
parties" or "internet service providers" on
which it seeks to serve subpoenas, or how those parties would
have identifying information as to the Doe defendants. The
Court therefore denies Plaintiffs' request as to any
other third party or internet service provider. If Plaintiffs
seek to serve third-party subpoenas on other additional
internet service providers, they may file a letter specifying
those parties and explaining why good cause exists to allow
such expedited discovery.
it is hereby:
that Plaintiffs' request for leave to serve third-party
subpoenas pursuant to Federal Rule of Civil Procedure 45 in
order to identify the Doe defendants is granted as to
Yelp.com, but denied as to any other third party or internet
FURTHER ORDERED that Plaintiffs shall attach a copy of this
Order to all subpoenas served pursuant to this Order.
FURTHER ORDERED that, once served with a subpoena, the
subpoena recipient shall have 10 days to
serve a copy of this Order on Defendants using any reasonable
means. Defendants shall have 30 days from
the date this Order is served on them to file any motions
with this Court contesting the subpoena, including a motion
to quash or modify the subpoena.
subpoena recipient may not turn over Defendants'
information to Plaintiffs before the expiration of this
30-day period. If this period elapses without a Defendant or
subpoena recipient contesting the subpoena, the subpoena
recipient shall have 10 days to produce the
information responsive to the subpoena to Plaintiffs.
motion contesting a subpoena is filed, the subpoena recipient
may not turn over any information to Plaintiffs until the
Court issues an order instructing the subpoena recipient to
resume in turning over the requested discovery. A Defendant
who moves to quash or modify the subpoena shall at the same
time as his or her filing also notify the subpoena recipient
so that the subpoena recipient is on notice not to release
any of the Defendant's contact information to Plaintiffs
until the Court rules on the motion.
FURTHER ORDERED that the subpoena recipients shall preserve
any subpoenaed information pending the resolution of any