Mirza v. Doe

OPINION AND ORDER I. INTRODUCTION Before the Court is the motion of Plaintiffs Dr. Muhammad Mirza (“Dr. Mirza”) and Allied Medical and Diagnostic Services, LLC (“AMDS”) (together, “Plaintiffs”) pursuant to Federal Rule of Civil Procedure 26 requesting leave to serve a third-party subpoena (the “Subpoena”) on Yelp.com (“Yelp”) to ascertain the identities of the John Doe Defendants (the “Motion”). (ECF Nos. 18; 19 at 1; 23 at 1). Plaintiffs argue in their supporting Memorandum of Law (the “Memorandum”) that this discovery is necessary to “identify Defendants and prevent them from continuing their defamatory and harmful activity” and to advance the litigation of this action. (ECF No. 19 at 4, 14). For the reasons that follow, Plaintiffs’ Motion is GRANTED. II. BACKGROUND A. Factual Background Plaintiffs allege the following facts in their Complaint. (ECF No. 1; see also ECF No. 19). Dr. Mirza is a medical doctor, board-certified in internal medicine, and licensed in New York and New Jersey. (ECF No. 1 4; see also ECF No. 19 at 2). Dr. Mirza “is not a public official and not a public figure,” id., but he does own and operate the AMDS medical practice. (ECF No. 1 10; see also ECF No. 19 at 2). “As part of Dr. Mirza’s medical practice, he offers injections of Botulinum toxin A, commonly known as ‘Botox,’ manufactured by Allergen PLC, along with cosmetic treatments using other products.” (ECF No. 1 14; see also ECF No. 19 at 2). Some unsatisfied “patients who have undergone cosmetic procedures have chosen to voice [allegedly] false and defamatory accusations on Yelp,” which the Court collectively refers to as the “Reviews.” (ECF No. 1 17; see also ECF No. 19 at 3). As set forth in the Memorandum, Yelp is: a local business review and social networking site. The site has pages devoted to individual locations, such as restaurants, stores, and service providers, where Yelp [users]…submit reviews [for] the businesses using a one to five star [sic] rating scale…. Yelp[] collects name, email address, password, and zip code when a user sign[s] up for an account. The sign-up process does not require verifying a user’s name or address with any identity information…. Users on Yelp[] can use pseudonyms…[and] Yelp[] does not verify the names[.]…Thus, it is often impossible to know who wrote a particular review based solely on publicly displayed information…[In addition,] Yelp[] does not display users’ email addresses or other contact information for public consumption. However, Yelp[] tracks and stores mechanical information about users’ activity, including IP address and geolocation information…. Based on Plaintiffs’ and their counsel’s prior experiences with Yelp[], Yelp[] refuses to provide this information to third parties without a subpoena. (ECF No. 19 at 3-4) (internal citations omitted); Privacy Policy, Yelp, https://terms.yelp.com/privacy/en_us/20200101_en_us/#Information-We-Collect-and-How-We-Use-It (“When you create a Yelp account, we store and use the information you provide during that process, such as the first and last name you enter, email address, zip code, physical address, and any other information you may provide during the account creation process, such as a gender, phone number, or birth date.”). On November 21, 2019, Defendant “John Doe #1,” whose Yelp pseudonym is “John D.” and whose account is based in “Day, FL” (“Defendant #1″) wrote that Dr. Mirza is: “[p]retty terrible, rude and he’s very ugly also he’s a scam and a troll artist I think he may also be autistic and a little crazy in the head[.]“¹ (ECF No. 1 18). On December 26, 2019, Defendant “John Doe #2″ whose Yelp pseudonym is “Elizabeth M.” and whose account is based in “Lancaster, PA” (“Defendant #2″) also wrote a negative review making such statements as: “Dr. Mirza was extremely unprofessional and unsanitary;” “[he] crammed all of us in a tiny meeting room;” “Dr. Mirza’s assistant…was extremely rude;” and “he g[a]ve me the wrong product, [and] I paid 500$ worth of botox to maybe get 50$ worth injected.”² (ECF No. 1 25). On January 22, 2020, Defendant “John Doe #3″ whose Yelp pseudonym is “Robert R.” and whose account is based in “Jessup, MD” (“Defendant #3″) wrote, in relevant part: “Mirza is a hack. Works out of gym bags in some back end storage room that was sketchy and dirty…. [Y]our botox is fake. Stop scamming people. And PS, fillers and other aesthetic products need to be refrigerated, not kept in your son’s basketball duffel collection.”³ (ECF No. 1 33). On February 28, 2020, Defendant “John Doe #4″ whose Yelp pseudonym is “Zoe C.” and whose account is based in “Manhattan, NY” (“Defendant #4″) wrote a review claiming that Dr. Mirza’s “filler is diluted” and that when she “[w]ent to [him] paid $400 (even tho it was advertise[d] at $350) and within 3 weeks the filler had dissolved.”⁴⁵ (ECF No. 1 40). On March 20, 2020, Defendant “John Doe #5″ whose Yelp pseudonym is “Caroline P.” and whose account is based in “Lake in the Hills, IL” (“Defendant #5″) wrote that Dr. Mirza is an “imposter of a doctor” who “is posting ads on Instagram to lure clients in for 50 percent Botox.”⁶ (ECF No. 1 47). On August 6, 2020, Defendant “John Doe #6″ whose Yelp pseudonym is “Yelena P.” and whose account is based in “New York, NY” (“Defendant #6″) wrote that Dr. Mirza is a “[p]op-up quack doctor who will gladly botch up your face and have you pay for it.” She added that patients “might be getting pumped full of windex…So if you enjoy looking disfigured, you found your perfect ‘doctor.’”⁷ (ECF No. 1 54). On June 23, 2020 Defendant “John Doe #7″ whose Yelp pseudonym is “Lana W.” and whose account is based in “Bethesda, MD” (“Defendant #7″) wrote that Dr. Mirza “is a complete con artist [and f]rom the real reviews (the negative ones) that I have read everyone complains about the same stuff: it’s dirty, he’s fast, rude, intimidates you to upsell — which is horrible because many of his clients are insecure…and he dilutes his injectables” adding that “[t]hey are probably counterfeit [and]…he basically does ‘pop ups’ in locations and is never anywhere to be found.”⁸ (ECF No. 1 61). On July 23, 2020 Defendant “John Doe #8″ whose Yelp pseudonym is “Zin N.” and whose account is based in “Queens, NY” (“Defendant #8″) wrote that Dr. Mirza “is very unprofessional” and warned prospective patients to “not let him eat your money.”⁹ (ECF No. 1 67). Last, on August 20, 2020, Defendant “John Doe #9″ whose Yelp pseudonym is “Carly D.” and whose account is based in “San Francisco, CA” (“Defendant #9″) wrote that Dr. Mirza “does not use full syringe and price gauges” and that “[h]e waters down his fillers and your results disappear in a couple of days,” adding that he should “be held accountable for his fraudulent practices.”¹⁰ (ECF No. 1 74). Plaintiffs argue that Defendants’ statements in the Reviews are false and reputationally damaging. First, “Dr. Mirza has never been diagnosed as autistic or with any mental health condition.” (ECF No. 19 at 4). Rather, he “is a licensed medical doctor” (ECF No. 1 51), who “engages in necessary procedures to ensure a sanitary practice [and he] does not intimidate his patients to buy more product [or] dilute the product purchased by the client [or] use counterfeit products, but only uses authentic products.” (Id. 65). Moreover, Plaintiffs allege, while Dr. Mirza’s medical practice does “operate out of different commercial office spaces,” they “have a primary office location that they can be reached at, along with an office phone number and email address” (id.), and at the various locations they “follow temperature guidelines from the products’ companies and always have a refrigerator on site.” (Id. 37). “Plaintiffs [also allege that they] are not engaged in the practice of theft or embezzlement.” (Id. 71). Because of the Reviews, Plaintiffs allege that their reputation “ha[s] been and continue[s] to be substantially and irreparably harmed,” leading to lost revenue. (Id.

3, 22, 29, 36, 43, 50, 57, 64, 70, 77, 80-83, 86, 88, 93, 98, 101-102). B. Procedural History On November 23, 2020, Plaintiffs filed the Complaint alleging claims of defamation per se, trade libel, and tortious interference with contract and seeking damages and injunctive relief. (ECF No. 1 at 2, 18-19). On December 7, 2020, Plaintiffs filed a letter-motion requesting leave to conduct expedited discovery. (ECF No. 5) (the “Letter-Motion”). In an Order dated December 9, 2020, Judge Fox noted that the Letter-Motion did not comply with the Court’s Local Civil Rules and ordered Plaintiffs to instead submit a formal motion in accordance with Local Civil Rule 7.1(a). (ECF No. 7). On February 16, 2021, Plaintiffs filed a motion for expedited discovery (the “First Motion”), seeking to serve third-party subpoenas on Yelp along with additional third parties, such as Defendants’ Internet service providers (“ISP”) and email service providers. (ECF Nos. 8; 10). Accordingly, on February 17, 2021, Judge Fox denied the Letter-Motion as moot. (ECF No. 11). On June 23, 2021, Judge Fox denied the First Motion without prejudice, finding that Plaintiffs had failed to show good cause for the requested discovery (“Judge Fox’s Order”). (ECF No. 16). Explaining the reason for the denial of the First Motion, Judge Fox noted that: plaintiffs failed to identify: (a) “other third-party providers”; (b) what “other-party providers” provide; and (c) information the plaintiffs seek to obtain by “issuing a third-party subpoena on Yelp[] or other third-party providers.” The [P]laintiffs did not provide any evidence explaining: (1) who or what “Yelp[]” is; (2) the basis for believing that “ Yelp[]” has any information they intend to seek by a third-party subpoena, including any information that may serve to identify the defendants in this action…. [Plaintiffs also] failed to explain what “Yelp[] profiles” are or the basis for his knowledge about “Yelp[] profiles,” since [Mirza] did not identify himself as having any relation to “Yelp[].”…[Finally,] [P]laintiffs failed to provide evidentiary support for their self-serving conclusory assertion that they “are unable to uncover the identity of Defendants without issuing a third-party subpoena on Yelp[] or other third-party providers.” Id. at 3-4. Following Judge Fox’s Order, on September 16, 2021, Plaintiffs filed the Motion (ECF No. 18), supported by the Memorandum (ECF No. 19) and declarations from Dr. Mirza (the “Mirza Declaration” (ECF No. 20)) and Haymant Parmanand, the Digital Manager of AMDS (the “Parmanand Declaration” (ECF No. 21)). According to the Parmanand Declaration, Mr. Parmanand’s responsibilities as Digital Manager include creating digital content and managing AMDS’s website, customer relations, and marketing. (Id.