Keystone Symposia vs Domains

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-03579-GPG-KAS
KEYSTONE SYMPOSIA ON MOLECULAR AND CELLULAR BIOLOGY,
Plaintiff,
v.
DOMAINS IDENTIFIED AS DEFENDANTS’ DOMAINS, and Jane or John Does,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion for Leave to Serve a Third
Party Subpoena Prior to a Rule 26(f) Conference [#2] (the “Motion”).1 The Motion [#2]
has been referred to the undersigned. See Memorandum [#6]. For the reasons stated
below, the Motion [#2] is GRANTED.
I. Background
In this lawsuit, Plaintiff brings claims of trademark infringement under the Lanham
Act, 15 U.S.C. § 1051, et seq.; cybersquatting under the Lanham Act; common law
trademark 	infringement; 	deceptive 	and 	unfair 	trade 	practices 	under 	the 	Colorado
Consumer Protection Act, Colo. Rev. Stat. § 6-1-101, et seq.; trademark infringement
under Colorado law; unfair competition under Colorado law; and common law fraud. See
Compl. [#1], ¶ 2.
1 The Motion [#2] incorporates a “Memorandum of Law in Support of Plaintiff’s Motion for Leave
to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference” as part of the same document.
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Plaintiff 	is 	a 	nonprofit 	corporation 	that 	holds 	“50-60 	open, 	peer-reviewed
conferences and symposia annually, covering a range of research fields in the life
sciences and biomedical sciences.” Id., ¶ 8. It owns, operates, manages, and controls the
website https://www.keystonesymposia.org/; owns the federally registered “Keystone
Symposia” trademark; and uses a specific design mark in connection with its goods and
services. Id., ¶¶ 10-12.
Plaintiff 	alleges 	that 	Defendants—the 	two 	internet 	domains, 	sponsorships-
keystonesymposia.org and funding-keystonesymposia.org, as well as the John or Jane
Doe(s) who own those domains—have engaged in a “phishing” scheme in which “they
impersonate Keystone employees in order to deceive Keystone customers into paying
expensive registration fees for upcoming symposia hosted by Keystone.” Id., ¶ 1.
Defendants’ true identities are currently unknown to Plaintiffs. Id., ¶ 4; see also Motion
[#2] at 3-4 (asserting that “the true identity of Defendant [Doe] is not readily discernable
because it is not made public” and providing a screenshot of WHOIS2 search results).
Plaintiff names three third-parties likely to have identifying information about the
Doe Defendant(s): Hostinger International Ltd. (“Hostinger”), a web hosting company;
Privacy Protect, LLC (“Privacy Protect”), which provides a WHOIS privacy service for
domain owners; and PayPal Holdings, Inc. (“PayPal”), a payment service provider. See
Compl. [#1], ¶¶ 15-17; Motion [#2] at 4.
2 WHOIS is “an Internet service that finds information about a domain name or IP address. . . . If
[one] enter[s] a domain name in a WHOIS search engine, it will scour a huge database of domains
and return information about the [domain name] entered. This information typically contains the
name, address, and phone number of the administrative, billing, and technical contacts of the
domain name.” XMission, L.C. v. Adknowledge, Inc., No. 2:15-cv-277-TC, 2016 WL 3562039, at
*1 	(D. 	Utah 	June 	24, 	2016) 	(quoting 	WHOIS, 	SHARPENED 	PRODUCTIONS,
https://techterms.com/definition/whois (last accessed January 2, 2025)).
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II. Legal Standard
Generally, formal discovery is not permitted until the parties have conferred under
Fed. R. Civ. P. 26(f). See Fed. R. Civ. P. 26(d)(1) (“A party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f), except in a
proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized
by these rules, by stipulation, or by court order.”). However, a court may exercise
discretion to “alter the timing, sequence, and volume of discovery.” See Qwest Commc’ns
Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).
In this District, courts have permitted expedited discovery upon a showing of good
cause. See, e.g., SEBO Am., LLC v. Does, No. 21-cv-02865-RM-STV, 2021 WL 5167196,
at *1 (D. Colo. Oct. 29, 2021) (citing Pod-Ners v. N. Feed & Bean of Lucerne Ltd., 204
F.R.D. 675, 676 (D. Colo. 2002)); Liberty Media Holdings, LLC v. Colo. Members of
Swarm of Nov. 19, 2010 to Dec. 11, 2011, No. 11-cv-01170-WJM-KMT, 2011 WL
1812554, at *1 (D. Colo. May 12, 2011) (citing same). “Good cause may exist where the
plaintiff seeks a preliminary injunction, where the moving party has asserted claims of
infringement or unfair competition, or ‘where physical evidence may be consumed or
destroyed with the passage of time, thereby disadvantaging one or more parties to the
litigation.’” SEBO Am., LLC, 2021 WL 5167196, at *1 (quoting Qwest Commc’ns, 213
F.R.D. at 419).
A plaintiff’s inability to identify a defendant is “one of the few reasons that early
discovery is generally permitted.” Malibu Media, LLC v. John Doe Subscriber Assigned
IP Address 174.51.234.104, No. 13-cv-00307-WYD-MEH, 2013 WL 3753436, at *4 (D.
Colo. July 14, 2013) (citing 20/20 Fin. Consulting, Inc. v. Does 1-5, No. 10-cv-01006-
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CMA-KMT, 2010 WL 1904530, at *1 (D. Colo. May 11, 2010)). 	In such situations, “the
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.” 20/20 Fin. Consulting, 2010 WL
1904530, at *1.
III. Analysis
Here, 	Plaintiff’s 	claims 	include 	allegations 	of 	trademark 	infringement, 	unfair
competition, and common law fraud. See, e.g., Compl. [#1], ¶¶ 36-51 (claims for
trademark infringement and unfair competition under the Lanham Act), 66-69 (claim for
trademark infringement and unfair competition under Colorado law), 70-78 (common law
fraud). Additionally, Plaintiff represents that it is unable to identify the Doe defendant(s).
See Decl. of Baumgartner [#2-1], ¶ 4. In such circumstances, courts have allowed
discovery to identify those unknown defendants. See 20/20 Fin. Consulting, 2010 WL
1904530, at *1 (discussing Arista Records, LLC v. John Does 19, 551 F. Supp. 2d 1, 6
(D.D.C. 2008) (permitting expedited discovery in copyright infringement lawsuit upon
finding good cause); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612,
614 (D. Ariz. 2001) (permitting expedited discovery in trademark infringement lawsuit
upon finding good cause)).
Plaintiff states that it has determined Defendants are using the services of
Hostinger, Privacy Protect, and PayPal—a web hosting company, privacy service
provider, and payment processing company, respectively—to conduct their phishing
scheme. See Decl. of Baumgartner [#2-1], ¶ 5. Given the service providers’ roles, Plaintiff
expects that these non-party entities “possess information that is very likely to lead to the
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detection of the Defendant’s identities and whereabouts.” Motion [#2] at 7. The Court
agrees and therefore concludes that good cause exists to allow Plaintiff to conduct
expedited discovery, pursuant to Fed. R. Civ. P. 45, for the limited purpose of discovering
the identities of the Doe defendant(s) who own the two domain names at issue.
However, Plaintiff did not attach copies of its proposed subpoenas, so the Court
cannot determine whether they would be appropriately narrow. Accordingly,
IT IS HEREBY ORDERED that the Motion [#2] is GRANTED. Plaintiff may serve
third-party subpoenas on Hostinger, Privacy Protect, and PayPal pursuant to Fed. R. Civ.
P. 45 prior to the Rule 26(f) conference, for the limited purpose of ascertaining the identity
of the Doe Defendant(s) as described in the Complaint [#1]. These subpoenas shall be
limited to providing Plaintiff with the true name, address, telephone number, and email
address of the Doe Defendant(s) associated with the Defendant domains. Plaintiff shall
also serve a copy of this Order with the subpoena. Cf. SEBO Am., LLC, 2021 WL
5167196, at *2 (granting similar motion subject to these conditions).
Dated: January 8, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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