United States District Court, W.D. Washington
ORDER DENYING PLAINTIFF'S MOTION TO EXPEDITE
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
alleges that Defendants are engaged in a complex internet
“phishing” scheme to unlawfully obtain account
access credentials from Microsoft customers. Dkt. #1.
Specifically, Plaintiff alleges that Defendants transmit
misleading and deceptive “Account Update” emails
to Microsoft customers in an effort to fraudulently obtain
user names and passcodes for customers' Microsoft
Accounts (“MSAs”). Id. Plaintiff now
seeks permission to take expedited discovery from
GoDaddy.com, LLC, A2 Hosting, Inc., NameCheap, Inc., Google,
Inc. and Cloudflare, Inc. Dkt. #4 at Section D., ¶
14a.-e. As further discussed below, Plaintiff has failed to
meet the standard required for expedited discovery at this
time. As a result, the Court does not find that good cause
exists to allow Microsoft to engage in expedited, preliminary
Microsoft, is a Washington corporation with its principal
place of business in Redmond, Washington. Dkt. #1 at ¶
3. Microsoft develops, markets, distributes, and licenses
computer software, among other products and services.
Id. One of these products is Office 365. According
to Microsoft, Office 365 signifies a revolutionary change in
the way that it delivers its software to consumers.
Id. at ¶ 9. Previously, Microsoft licensed its
popular Office suite of productivity products - which
includes Word, Excel, PowerPoint, Outlook, OneNote,
Publisher, and Access, among others - to computer users who
installed and stored the software on their computer systems
locally. Id. With Office 365, Microsoft Office is
available on a subscription basis that uses and leverages
Microsoft's Azure cloud technology. Now, customers
purchase a subscription to Office 365 that provides access to
both cloud and locally-stored versions of the software.
Id. at ¶ 10. This allows customers to receive
instant access to the latest versions of each program, and
use the programs across multiple devices (such as laptops,
phones, tablets, etc.). An Office 365 subscription also comes
with cloud storage. Id.
365 can be licensed for consumer or personal use (through the
Personal, Home or Student products) or for commercial use
(through the Business or Enterprise products). Id.
at ¶ 12. Using either type of Office 365 service
requires the establishment of online accounts. Id.
For the consumer use products, a user must create or use an
existing MSA consisting of an email address and password.
Id. at ¶ 13. The commercial Office 365 products
are created for organizations, which are identified as
Tenants. Id. at ¶ 14. User accounts within a
Tenant are set-up in one of two ways that take advantage of
Microsoft's Azure Active Directory product - a
cloud-based directory and identity management system. Dkt. #1
at ¶ 14. First, the Administrator of the Tenant can set
up individual Office 365 Commercial User Accounts. Second,
the Administrator can create several Accounts in bulk.
noted above, Plaintiff alleges that Defendants have engaged
in a phishing scam targeting Office 365 users.
“Phishing” is a broad term that can encompass
many different activities. Dkt. #4 at ¶ 3. The most
well-known phishing schemes fall under the umbrella of social
engineering attacks. Generally, these schemes involve an
individual or group creating spoofed emails that purport to
be from legitimate businesses, agencies or individuals.
Id. These emails are designed to lead the recipient
to fake websites that trick users into divulging sensitive
information, such as financial account data, login
credentials and other personally identifiable information.
Id. at ¶ 4. The people behind the fake websites
harvest personal information and use it to access
peoples' accounts for their own illicit gain.
Id. They may also sell the personal information to
others. They may also use the initial email or fake website
to infect users' computers with malware. Id. at
¶ 5. This malware can further expose unsuspecting
victims' personal information, for example, by searching
the computer for sensitive files, or even monitoring key
strokes to harvest personally identifiable information
entered into websites. Malicious software also allows the
criminals to hijack a computer or network to propagate
further attacks. Id.
asserts that it goes to great lengths to protect
customer's online accounts. Id. at ¶ 7. In
particular, Microsoft points to the fact that it engineered
Office 365 to prevent spam, viruses and malware from even
reaching Office 365 users. Id. For example,
Microsoft built multiple spam filters into Office 365 mail
accounts so customers' email addresses are protected from
the moment the first message is received. Microsoft uses
three anti-malware engines to detect potentially dangerous
software that may be sent to users. Dkt. #4 at ¶ 7.
Microsoft also offers Office 365 Advanced Threat Protection,
which helps protect a user's mailbox against new,
sophisticated attacks in real time. Id. In addition
to stopping phishing attempts before they reach users,
Microsoft also investigates, identifies and stops the
criminals behind malicious attacks. Id.
to filing this lawsuit, Microsoft explains that it used
various investigative techniques to uncover Defendants'
alleged phishing scheme. Id. at ¶ 8. According
to Microsoft's investigator, Pierre Anaman,
Defendants' scheme starts by sending unsolicited bulk
email purporting to be from the “The account team,
” to their potential victims. Id. at ¶ 9.
The emails' subject line is “Email 365 Termination
Last Notice, Update Today.” Id. The body of
the email states: “we've detected your Email
account is due for upgrade today. To help keep you Active,
we've required an Account Update.” Id. The
email goes on to state “Validate today to avoid instant
email closure” and then provides a button for the user
to click on. Id. The language and formatting of the
email is designed to appear as if the email came from
Microsoft. By clicking on the “Validate Account
Now” button in the Phishing Email, the user is brought
to a page that purports to be a logon page to Office 365 (the
“Phishing Page”). Id. at ¶ 10. This
page uses Microsoft's trademarks and other designs to
create the appearance of being a legitimate Microsoft webpage
when in reality it is a counterfeit of Microsoft's Office
365 logon page. Id.
Phishing Page is located on a website that uses the domain
name defendworld.eu. Id. at ¶ 11. Based on a
search of public records relating to that domain, the
registrar is GoDaddy.com, LLC. Id. The registrant of
the domain is listed as “Nuno Pires.”
Id. Microsoft identified and verified that the IP
Address used to host defenworld.eu was IP 126.96.36.199,
which is administered by a third-party web hosting company,
A2 Hosting, Inc. (“A2 Hosting”). Id. The
content from the Phishing Page, therefore, is hosted on a
server that belongs to and is controlled by A2 Hosting. Dkt.
#4 at ¶ 11. However, Microsoft could not (and cannot)
determine the identity of the persons behind the website from
public records. Id.
entering login credentials, sometimes a Pop-Up dialogue box
presents to the user (“Pop-Up”). Id. at
¶ 12. This Pop-Up purported to be a safety alert from
Microsoft: “Windows Defender Alert: Zeus Virus Detected
In Your Computer.” Id. The Pop-Up provides a
number for the user to call at “Microsoft's
Technical Department.” Id. This Pop-Up is not
affiliated with Microsoft, is not advertising authorized
Microsoft services, and instead, is part of Defendants'
scheme to defraud Microsoft's customers. Id. The
Pop-Up is hosted on a website that uses the domain azure1.us.
Based on a search of public records relating to this domain,
the registrar is NameCheap, Inc. The registrant of the domain
is listed as “Anatoliu Golovin, ” and the
registrant's email address is listed as
firstname.lastname@example.org. Id. The domain
azure1.us is hosted on a server owned or controlled by
Cloudflare, Inc. Id.
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
such early discovery. See, e.g., Yokohama Tire Crop. 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 John Doe
defendants through early discovery, courts examine whether
the plaintiff (1) identifies the John 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).
Plaintiff has not yet established good cause to engage in
early discovery to identify the John Doe Defendants. While
Plaintiff has associated the John Doe Defendants with
specific phishing activities, and has been able to trace
those activities as originating from a certain IP address and
servers, it has not alleged that the IP address and/or any of
the hosting companies or servers are located in this judicial
District. See Dkt. #4 at ¶ ¶ 11-13. Thus,
the Court cannot determine the likelihood that any of the
John Doe Defendants could be sued in this Court. Further,
Plaintiff fails to attach any proposed subpoenas to its
motion, or describe what discovery it will seek from each of
the entities it plans to serve. Thus, the Court is unable ...