Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm News
Author: Scarinci Hollenbeck, LLC
Date: March 14, 2023
The Firm
201-896-4100 info@sh-law.comPre-action discovery allows a plaintiff to obtain discovery prior to the commencement of an action to preserve information or aid the plaintiff in bringing an action. Obtaining the identity of the person to whom the complaint should be brought may necessitate the need for pre-action discovery. In order to obtain court-ordered pre-action discovery to identify a defendant, the plaintiff is required to demonstrate the existence of a meritorious cause of action against the defendant, as well as the materiality and necessity of obtaining the information.
This article discusses GSB Gold Standard Corporation AG v. Google LLC and GoDaddy Inc., (160880/2022), a case in which Plaintiff GSB Gold Standard Corporation AG (“GSB”, the “Company” or “Petitioner”) was granted an order to show cause under Section 3102(c) of the New York State Civil Practice Law and Rules (“CPLR”) compelling pre-action disclosure by Google LLC (“Google”) and GoDaddy Inc. (“GoDaddy”) to obtain the information indicating the identity of owners of an online publication that was producing defamatory content about GSB.
Section 3102(c) of the CPLR permits a plaintiff to obtain discovery “before an action is commenced . . . to aid in bringing an action . . . by court order.” CPLR Section 3102(c). When a plaintiff moves for pre-action discovery, plaintiff must demonstrate that “it has a meritorious cause of action and the information sought is material and necessary to the actionable wrong.” Dyer v. Canaccord Genuity LLC, 2022 NY Slip Op 34136(U), ¶ 2 (Sup. Ct.). The plaintiff bears the burden “to present facts fairly indicating a cause of action against the adverse party.” Goldstein v. N.Y. Daily News, 106 A.D.2d 323, 325, 482 N.Y.S.2d 768, 771 (App. Div. 1st Dept. 1984).
However, New York courts have imposed a limitation on pre-action discovery by prohibiting a plaintiff from using such to determine whether plaintiff has a viable cause of action. Garcia v. Trident Gen. Contracting LLC, 2022 NY Slip Op 34154(U), ¶ 3 (Sup. Ct.).
Courts have long upheld that pre-action discovery “is not permissible as a fishing expedition to ascertain whether a cause of action exists. Id. Further, pre-action discovery is not permissible when the plaintiff “has sufficient information to frame [his] complaint,” including potential defendants and/or the time and place of the accident. Curtis v. City of N.Y., 2022 NY Slip Op 34015(U), ¶ 3 (Sup. Ct.) (quoting Holzman v. Manhattan & Bronx Surface Transit Operating Auth., 271 A.D.2d 346, 347, 707 N.Y.S.2d 159, 161 (App. Div. 1st Dept. 2000)).
The purpose of limiting pre-action discovery is to “prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party.” Curtis v. City of N.Y., 2022 NY Slip Op 34015(U), ¶ 3 (Sup. Ct.) (quoting Stewart v New York City Transit Authority, 112 AD 2d 939, 940, 492 N.Y.S.2d 459 (2d Dept 1985)). When a court determines that “the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate.” Id.
In GSB, the Court granted an order to show cause and petition filed by GSB to obtain pre-action discovery from Google and GoDaddy (collectively referred to as the “Respondents”) pursuant to CPLR Section 3102(c).
GSB sought court approval to serve a subpoena on both Google and GoDaddy to compel the production of all documents containing the information as to the identity of the unknown individual or individual(s) who registered the website www.behindmlm.com and has published defamatory statements about GSB.
In the spring of 2022, GSB discovered that an unknown individual or individual(s) operating www.behindmlm.com (the “BehindMLM Website”) made numerous defamatory publications on the site regarding GSB and its personnel, harming GSB’s name, brand, and reputation.
While GSB was able to preclude publication of these statements in Germany by successfully obtaining injunctive relief in German courts, the defamatory conduct has persisted outside of Germany, GSB turned to Scarinci Hollenbeck, LLC who, through quick analysis, determined the website was being hosted by Google and the domain owned by GoDaddy through entities linked to the U.S. Scarinci Hollenbeck, LLC used this information to quickly seek pre-action discovery through a New York court.
The Court granted GSB’s order to show cause and Google and GoDaddy were ordered to respond to their respective subpoenas providing all documents containing the information as to the identity of the unknown individual(s) of the BehindMLM Website.
If you’re facing online reputational harm from an unknown source, CPLR Section 3102(c) is an advantageous tool and often underutilized. SH-Law has successfully utilized this tool often at minimal cost to our clients.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Scarinci Hollenbeck Partner Nathanya G. Simon named by ROI-NJ to the “ROI Influencers: Women in Business” list for fourth consecutive year Scarinci Hollenbeck Partner Nathanya G. Simon has been named by ROI-NJ to the “ROI Influencers: Women in Business” list for 2025. After four decades of practice, Nathanya’s pioneering influence in the field of special […]
Author: Scarinci Hollenbeck, LLC
Congratulations Angela Turiano on appointment as Director of Legislative Affairs for SHRM Princeton April 17, 2025 – Little Falls, NJ – Scarinci & Hollenbeck, LLC congratulates Partner Angela Turiano on her appointment as Director of Legislative Affairs for SHRM Princeton. Along with serving as a member of SHRM Princeton’s leadership team, Angela will monitor pending legislative, regulatory, […]
Author: Scarinci Hollenbeck, LLC
Congratulations Brittany P. Tarabour for Nomination as Three-Year Trustee of the Monmouth Bar Association Red Bank, NJ – April 9, 2025 – Scarinci & Hollenbeck, LLC proudly congratulates Brittany P. Tarabour on her nomination by the Monmouth Bar Association to serve as a Three-Year Trustee. Founded in 1908, the Monmouth Bar Association is dedicated to […]
Author: Scarinci Hollenbeck, LLC
Scarinci Hollenbeck Partner Ron Bienstock Featured on Bloomberg Law Podcast to Discuss Dua Lipa Copyright Infringement Lawsuits Little Falls, NJ – April 8, 2025 – Scarinci & Hollenbeck, LLC Partner and Chair of the firm’s Intellectual Property and Entertainment & Media departments Ronald S. Bienstock was recently featured on the Bloomberg Law podcast to discuss […]
Author: Scarinci Hollenbeck, LLC
Scarinci Hollenbeck Attorneys From Little Falls and Red Bank Named to 2025 New Jersey Super Lawyers List Little Falls, NJ – April 2, 2025 – Scarinci & Hollenbeck, LLC attorneys from both NJ offices were named to the 2025 New Jersey Super Lawyers and Rising Stars list. Each attorney was chosen in recognition of their […]
Author: Scarinci Hollenbeck, LLC
On Thursday, April 3, 2025, Partner Angela Turiano will make her fifth appearance as a mock arbitrator for the Securities Arbitration Clinic at the prestigious Fordham School of Law. Angela will draw on her years of experience to provide feedback to these future lawyers after making opening presentations and closing arguments, with the goal of […]
Author: Scarinci Hollenbeck, LLC
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!