Uber Techs., Inc. v. I

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Docket Number

No. C 15-00908 LB

Judges

Laurel D. Beeler

Acts

Crimes And Criminal Procedure — Fraud And False Statements — Crimes — Fraud And Related Activity In Connection With Computers
Of Crimes Against Property — California Penal Code — Larceny — Unauthorized access to computers, computer systems, and computer data

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Smart Summary

Factual and Procedural Background

Uber Technologies, Inc. filed suit against an unidentified defendant, John Doe I, alleging unauthorized access and downloading of Uber's proprietary database files using a unique security key from Uber's protected computers. The unauthorized access occurred on or around May 12, 2014, from an IP address not associated with Uber employees. Uber claims damages exceeding $5,000 resulting from this unauthorized access, which also caused it to expend resources investigating and preventing further breaches. Uber was unable to identify John Doe I through informal means, including analysis of IP addresses and attempts to obtain identifying information from GitHub, a third-party internet service where Uber's code is partially hosted. Consequently, Uber sought expedited discovery from GitHub to identify John Doe I by subpoenaing records related to access of specific GitHub pages associated with Uber's code. The court heard the matter and issued this order granting Uber's ex parte motion for expedited discovery.

Legal Issues Presented

Whether Uber has shown good cause to obtain expedited discovery to identify the unknown defendant John Doe I prior to the Rule 26(f) conference.
Whether the court has personal jurisdiction over John Doe I based on his alleged unauthorized access and related activities directed at Uber in California.
Whether the proposed subpoena to GitHub is likely to yield information that will identify John Doe I and thus justify early discovery under Federal Rule of Civil Procedure 26(d).

Arguments of the Parties

Plaintiff Uber Technologies, Inc.

John Doe I accessed and downloaded Uber's confidential proprietary database files without authorization, violating the Computer Fraud and Abuse Act and California Penal Code § 502.
Uber attempted to identify John Doe I through IP address analysis and informal requests to GitHub but was unsuccessful.
The proposed subpoena to GitHub targets specific GitHub pages associated with Uber's code, where the unauthorized user also accessed, and is likely to yield identifying information.
Uber demonstrated that John Doe I is a real person subject to federal jurisdiction and that the claims can withstand a motion to dismiss.
Early discovery is necessary and justified, as it outweighs any burden on GitHub, which routinely handles discovery requests.

The opinion does not contain a detailed account of Defendant John Doe I's arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)	Plaintiff should be allowed discovery to identify unknown defendants unless discovery would not uncover identities or complaint would be dismissed.	The court applied this to justify allowing Uber to seek early discovery to identify John Doe I.
Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999)	Factors to establish good cause for early discovery of unknown defendants: specificity of identification, efforts to locate, ability to withstand motion to dismiss, likelihood discovery will lead to identification.	The court evaluated Uber's showing under these four factors and found good cause for expedited discovery.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004)	Three-prong test for specific personal jurisdiction: purposeful direction or availment, claim arises from forum-related activities, jurisdiction is reasonable.	The court found John Doe I’s acts targeted Uber in California, satisfying the jurisdictional test.
Calder v. Jones, 465 U.S. 783, 789 (1984)	Intentional tortious acts expressly aimed at the forum state can establish personal jurisdiction.	The court relied on this to support jurisdiction over John Doe I based on his intentional access of Uber's computers.
Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000)	Defendant must have caused harm the brunt of which is suffered in the forum and which defendant knows is likely to be suffered there.	Applied to conclude John Doe I knew his actions would cause harm in California.
Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206-07 (9th Cir. 2006)	Personal jurisdiction principles concerning harm directed at the forum state.	Supported the court’s finding of jurisdiction over John Doe I.
Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)	Good cause for expedited discovery exists where the need outweighs prejudice to the responding party.	The court found Uber’s need for early discovery outweighed any burden on GitHub.
IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010)	Standard for good cause to permit early discovery in the Ninth Circuit.	Referenced in setting the standard for Uber’s motion.
Texas Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at *2 (E.D. Cal. June 9, 2010)	Standard for good cause in early discovery motions.	Referenced to support the good cause standard.
Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz. 2001)	Collected cases on standards for early discovery and good cause.	Used to frame the legal standard for expedited discovery.

Court's Reasoning and Analysis

The court applied the established Ninth Circuit standard for early discovery to determine if Uber demonstrated good cause. It analyzed four factors:

Identification of Defendant: Uber sufficiently identified John Doe I as a real person who can be sued, based on the unauthorized access of Uber’s protected computers.
Efforts to Identify: Uber made reasonable efforts to identify John Doe I through IP address analysis and informal inquiries to GitHub but was unsuccessful.
Viability of Claims: Uber stated claims under the federal Computer Fraud and Abuse Act and California Penal Code § 502 that can withstand a motion to dismiss.
Likelihood of Discovery Leading to Identification: The subpoena to GitHub targets specific pages accessed by the unknown defendant and is reasonably likely to yield identifying information.

Regarding personal jurisdiction, the court applied the three-prong test from Schwarzenegger and found that John Doe I purposefully directed his activities at Uber in California, the claims arise from those forum-related activities, and exercising jurisdiction is reasonable. The court also relied on precedents such as Calder and Bancroft & Masters to conclude that John Doe I knew his acts would cause harm in California.

Balancing the interests, the court found Uber’s need for early discovery outweighed any burden on GitHub, which routinely handles discovery requests. The court concluded that early discovery is justified under Federal Rule of Civil Procedure 26(d) and consistent with the interests of justice.

Holding and Implications

The court GRANTED Uber's ex parte motion for expedited discovery.

The direct effect is that Uber may immediately serve the proposed subpoena on GitHub to obtain records relating to access of specified GitHub pages, which are likely to lead to identifying John Doe I. GitHub is ordered to notify John Doe I and preserve subpoenaed information, with defined timelines for motions to quash and production of information. Uber may use the subpoenaed information solely for its claims under the Computer Fraud and Abuse Act and California Penal Code § 502. The court’s order does not establish new legal precedent but facilitates Uber’s ability to identify the unknown defendant in this case through early discovery.

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UBER TECHNOLOGIES, INC., Plaintiff, v. JOHN DOE I, an indi

LAUREL BEELER United States Magistrate Judge

ORDER GRANTING EXPEDITED DISCOVERY

[ECF No. 4]

INTRODUCTION

Plaintiff Uber Technologies, Inc. asserts claims against Defendant John Doe I for violating the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. and the California Comprehensive Computer Data Access and Fraud Act, California Penal Code § 502. (Compl. - ECF No. 1.) Uber seeks permission to take expedited discovery from the third party GitHub, Inc. to identify John Doe I. (ECF No. 4 at 1.) The court heard this matter on March 12, 2015. (ECF No. 10.)

Record citations are to documents in the Electronic Case File ("ECF"); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

As discussed below, Uber has demonstrated the following: (1) John Doe I is a real person who may be sued in federal court; (2) it has unsuccessfully attempted to identify John Doe I before filing this motion; (3) its claims against John Doe I could withstand a motion to dismiss; and (4) there is a reasonable likelihood that the proposed subpoena will lead to information identifying John Doe I. The court therefore finds that good cause exists to allow Uber to engage in this preliminary discovery. Accordingly, the court GRANTS Uber's ex parte motion for expedited discovery.

STATEMENT

Uber is a technology company. (Compl. - ECF No. 1, ¶ 5; ECF No. 4 at 2.) It has developed a smartphone application that connects drivers and riders in cities all over the world. (Id.) Uber's smartphone application is available in over 200 cities and has been used by over 100,000 drivers to receive requests for transportation services. (Id.) Uber maintains internal database files with confidential details on the drivers who use its application. (ECF No. 1, ¶ 6; ECF No. 4 at 2.) Those database files can be accessed only by certain Uber employees using a unique security key from Uber's protected computers. (ECF No. 1, ¶ 7; ECF No. 4 at 2.) On or around May 12, 2014, from an Internet protocol ("IP") address not associated with an Uber employee and otherwise unknown to Uber, John Doe I used a unique security key without authorization to access and download Uber's proprietary database files. (ECF No. 1, ¶ ¶ 7, 10, 11; ECF No. 4 at 2.) Uber alleges that John Doe I's unauthorized access has harmed Uber and caused it to expend resources to investigate and to prevent such access from occurring. (ECF No. 1, ¶ 12.) As a result, Uber suffered over $5,000 in damages. (Id; ECF No. 4 at 5.)

Under Local Civil Rule 7-10, Uber certifies that it attempted to identify John Doe I without success. (ECF No. 1, ¶ 12; ECF No. 4 at 4.) Specifically, Uber reviewed the IP addresses that accessed the database and isolated one unrecognized IP address, but could not identify John Doe I. (ECF No. 4 at 4; ECF No. 4-2 at 1) Uber was informed that the person who downloaded the files also visited two pages at the GitHub website that are specified in the subpoena, which requests:

For the GitHub posts

https://gist.githubusercontent.com/hhlin/9556255/raw/2a4fae0e6d443b29826096fe043409e2c305bb79/insurance_fun.py[gist.githubusercontent.com] and https://api.github.com/gists/9556255/[api.github.com], please produce all records, including but not limited to transactional or other logs, from March 14, 2014 toSeptember 17, 2014, identifying the IP addresses or subscribers that viewed, accessed,or modified these posts and the date/time of access, viewing, or modification, as wellas any records or metadata relating to the browser (i.e., logged HTTP headers,including cookies) or device that viewed, accessed, or modified the posts.

This subpoena does not request the contents of any communications

.

Please immediately preserve any potentially responsive records in your
possession, custody, or control, including by suspending routine deletion proceduresthat might result in the deletion or overwriting of records that may be responsive to tis subpoena.

(ECF No. 4-1 at 7; see ECF No. 4 at 4; ECF No. 4-2 at 2, 3.)

GitHub is a San Francisco-headquartered subscription Internet service where users collaborate in developing open-source-code software. At the hearing, Uber's counsel explained that GitHub hosts portions of Uber's code on the two pages specified in the subpoena. On these GitHub pages, people from Uber can work on the code collaboratively. In response to the court's questions, Uber represented that there should not be many "hits" on these pages. The hits should generally reveal people, who were affiliated with Uber and who worked on the Uber code near the time of the unauthorized download. Uber explained that GitHub may well have user logs that can be accessed easily, that Uber would work with GitHub to address any concerns about the burden that responding to the subpoena would place on GitHub, and that it would be in a better position to evaluate any burden or notification concerns once it sees how GitHub captures the relevant data. To date, Uber has been unable to obtain the information it needs from GitHub through informal investigation. (Id.) Uber therefore asks for early discovery under Federal Rule of Civil Procedure 26(d) and leave to serve the Proposed GitHub Subpoena to obtain information that can reasonably be expected to lead to discovering John Doe 1's identity. (ECF No. 4.)

ANALYSIS I. LEGAL STANDARD

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 within the Ninth Circuit generally consider whether a plaintiff has shown "good cause" for early discovery. See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002); Texas Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at *2 (E.D. Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz. 2001) (collecting cases and standards).

When the identities of defendants are 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." 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. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

II. UBER HAS SHOWN GOOD CAUSE TO TAKE EARLY DISCOVERY

Here, Uber has made a sufficient showing under each of the four factors listed above to establish good cause to permit it to engage in early discovery to identify John Doe I.

First, Uber has shown that a real person, John Doe I, may be subject to jurisdiction in this court by showing that the target of his misconduct is California, where Uber is headquartered. (ECF No. 1 at 2, 1; ECF No. 4 at 3, 4.) In this action, Uber alleges that John Doe I accessed Uber's proprietary database files from its protected computers by using a unique security key. (Id; Compl. - ECF No. 1, ¶ 11.) Those specific acts of misconduct can be perpetrated only by actual people, as opposed to a mechanical process. In addition, even if John Doe I is located outside California, the court would still have personal jurisdiction. To establish specific personal jurisdiction in the forum state, the Ninth Circuit applies the following three-prong test:

1. The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum . . . ;

2. the claim must be one which arises out of or relates to the defendant's forum-related activities; and

3. the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). "The plaintiff bears the burden of satisfying the first two prongs of [this] test." Id.

Uber has proved that John Doe I intentionally targeted Uber, which is headquartered in California, by accessing its computers and illegally downloading its confidential files. Uber's damages claims arise out of John Doe I's forum-related activities. Given that John Doe I intentionally accessed Uber's proprietary and confidential database without permission, he or she must know his or her acts likely caused harm in California. See Calder v. Jones, 465 U.S. 783, 789 (1984) ("petitioners are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California."); Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) ("the defendant must have . . . caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state."); Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206-07 (9th Cir. 2006). The court thus finds that it has personal jurisdiction over John Doe I.

Second, Uber has adequately described the steps it took to find and identify John Doe I. Specifically, its efforts include: (1) reviewing the IP address that accessed Uber's internal database; (2) isolating one unrecognized IP address; (3) learning that John Doe I also visited certain pages at the GitHut website; and (4) contacting GitHub to obtain the necessary information through informal investigation. (ECF No. 4 at 4; ECF No. 4-2.)

Third, Uber has pleaded the essential elements to state a claim for violations of the federal Computer Fraud and Abuse Act, and the California Comprehensive Computer Data Access and Fraud Act. (ECF No. 1 ¶¶ 6-12, 13-17; ECF No. 4 at 4, 5;) see 18 U.S.C. § 1030(a)(2)(C) ("Whoever . . . intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer . . . shall be punished . . . ."); Cal. Penal Code § 502(c)(1), (2), (7) ("[A]ny person who commits any of following acts is guilty of a public offense: Knowingly accesses and without permission . . . uses any data, computers . . . in order to wrongfully control or obtain . . . data.").

Fourth, Uber has demonstrated that the proposed subpoena seeks information likely to lead to uncovering John Doe's identity. (ECF No. 4 at 5.) Again, Uber learned that the person who accessed its database also visited pages at the GitHub website; the subpoena specifies these pages. (Id; ECF No. 4-2.) The proposed subpoena directs GitHub to yield information regarding John Doe I's access to the web pages in question. (ECF No. 4-2.) Given the information that is presently available to Uber, before and so without the issuance of the subpoena, obtaining this information from GitHub may be more than "reasonable," see Schwarzenegger, 374 F.3d at 802; it may be the only way that Uber can be expected to identify John Doe I. Additionally, Uber has shown that its need for early discovery outweighs the prejudice to GitHub, as GitHub is an established provider who routinely deals with discovery requests and would suffer little burden from producing the requested information. (ECF No. 4 at 5.)

Taken together, the court finds that the foregoing factors demonstrate that good cause exists to grant Uber's leave to conduct early discovery. See Semitool, 208 F.R.D. at 276 ("Good cause may be found where the need for expedited discovery . . . outweighs the prejudice to the responding party."). Furthermore, the court finds that early discovery furthers the interests of justice and poses little, if any, inconvenience to GitHub. Permitting Uber to engage in this early discovery is therefore consistent with Rule 26(d).

CONCLUSION

For the reasons stated above, the court GRANTS Uber's Ex Parte Motion for Expedited Discovery. The court orders the following:

1. Uber may immediately serve on GitHub the Proposed Subpoena to obtain the requested information. Uber's proposed subpoena is acceptable. The subpoena shall have a copy of this order attached. To the extent that producing the information sought is burdensome, the parties must meet and confer and comply with the court's discovery procedures in the attached standing order. It may be that an iterative process is the best way to deliver the information about the unauthorized access that entitles Uber to this discovery.

2. GitHub will have 30 days from the date that the subpoena is served upon them to serve John Doe I with a copy of the subpoena and a copy of this order. GitHub may serve John Doe I using any reasonable means, including written notice sent to his or her last known address, transmitted either by first-class mail or via overnight service.

3. John Doe I shall have 30 days from the date of service upon him or her to file any motions in this court contesting the subpoena (including a motion to quash or modify the subpoena). If that 30-day period lapses without John Doe I contesting the subpoena, GitHub shall have 10 days to produce the information responsive to the subpoena to Uber.

4. GitHub shall preserve any subpoenaed information pending the resolution of any timely motion to quash.

5. If GitHub has no information identifying John Doe I, then it need not comply with Paragraphs 2-4, and should immediately produce the information that the subpoena requests.

6. GitHub must confer with Uber and must not assess any charge in advance of providing the information requested in the subpoena. If GitHub elects to charge for the costs of production, it must provide a billing summary and cost reports that serve as a basis for such billing summary and any costs claimed by GitHub.

7. Uber must serve a copy of this order along with the subpoena to all relevant entities.

8. Uber may use the subpoenaed information only in connection with its instant claims under the federal Computer Fraud and Abuse Act, and the California Comprehensive Computer Data Access and Fraud Act.

This disposes of ECF No. 4.

IT IS SO ORDERED. Dated: March 16, 2015

/s/_________

LAUREL BEELER

United States Magistrate Judge