United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on Plaintiff TracFone
Wireless, Inc.'s (“TracFone”) Motion for
Limited Expedited Discovery and Service in Canada (the
“Motion”) [ECF No. 5]. The Court has reviewed the
Motion and is otherwise fully advised. For the reasons that
follow, the Motion is GRANTED.
TracFone's Complaint [ECF No. 1] and Motion, TracFone
alleges that Defendants are engaged in an unlawful
international mobile telephone trafficking scheme that
violates the Terms and Conditions accompanying the devices,
as well as federal and state law. TracFone alleges that
Defendants' conduct is causing TracFone to suffer
substantial monetary losses and other injury.
claims that Defendants are engaging in a scheme whereby they
purchase bulk quantities of subsidized TracFone Devices,
primarily popular iPhones, at big box retailers such as
Walmart, whether in store or online. Defendants then unlock
the devices, which are otherwise locked to TracFone's
wireless service by special proprietary software developed
and owned by TracFone.
claims that it has evidence indicating that Defendants then
resell the TracFone Devices for profit domestically and
abroad. TracFone's investigators witnessed Defendants
making bulk sales of TracFone devices in recent months.
TracFone has also produced declarations from Sair Ali, a
known cell phone trafficker in Dubai, showing that Defendants
trafficked over 17, 000 TracFone devices over a three-month
period in 2018. TracFone believes Defendants have trafficked
substantially more devices to date and continue to engage in
this scheme and that Defendants have enlisted the help of
friends, family, and other as-yet-unknown co-conspirators to
effectuate their scheme.
Motion details its concern that certain non-parties are
likely in possession of information relating to
Defendants' scheme but are not under any obligation to
preserve or produce such information, including non-parties
such as UPS, FedEx, banking institutions, and retailers such
as Target. Tracfone has produced a declaration from Kevin
Wehling, TracFone's Fraud Investigations Manager, that
attests to how TracFone takes steps to combat fraud and the
steps it took once it learned of Defendant's alleged
fraudulent activities. Mr. Wehling's declaration further
details how TracFone has attempted to gather information
pertaining to Defendants' scheme from various non-parties
(Target, Apple, Best Buy, Walmart, Bank of America, UPS, and
FedEx), and how those efforts have been frustrated due to the
fact that such non-parties are under no legal obligation to
preserve and share their information.
seeks to engage in expedited discovery and to serve both
process and third-party discovery subpoenas via FedEx or UPS,
including on Canadian third parties not in the United States.
Each is addressed in turn.
Tracfone May Engage in Expedited Discovery.
requests expedited discovery in this case prior to the
parties' scheduling conference pursuant to Federal Rule
of Civil Procedure 26(f) so it can learn the full extent of
the nature and scope of Defendants' alleged ongoing
unlawful conduct as quickly as possible to stop
Defendants' alleged misconduct. TracFone also seeks
expedited discovery to mitigate any additional harm
Defendants' alleged improper activities have caused to
TracFone's customers and to learn the identities of its
legitimate customers whom Defendants have allegedly defrauded
so that TracFone can take steps to make these customers
Federal Rules of Civil Procedure provide that discovery may
commence before the parties have engaged in a discovery
conference if ordered by the Court. Fed.R.Civ.P. 26(d) &
(f). Federal courts allow parties to conduct expedited
discovery in advance of a Rule 26(f) conference where the
party establishes “good cause” for such
discovery. See, e.g., GE Seaco Servs., Ltd. v.
Interline Connection, N.V., No. 09-23864-CIV, 2010 WL
1027408, *1 (S.D. Fla. Mar. 18, 2010). “Good cause can
be shown by establishing some impelling urgency which
necessitates action forthwith and excuses giving notice to
the other party.” Ghaffari v. Collins Tower
Ass'n, No. 13-21037-CIV, 2013 WL 12141254, at *1
(S.D. Fla. June 18, 2013) (citing GE Seaco Servs.,
LTD., 2919 WL 1027408, at *1) (internal quotations
Court agrees, based on the record in this case, that good
cause exists to allow expedited discovery particularly upon
consideration of Tracfone's concerns about evidence
preservation. The Court further finds that expedited
discovery is warranted so that TracFone may mitigate any
additional irreparable harm caused by Defendants' alleged
ongoing scheme. See, e.g., TracFone Wireless,
Inc. v. SCS Supply Chain LLC, 330 F.R.D. 613, 615 (S.D.
Fla. 2019) (finding that “good cause exists for
expedited discovery into Defendants' alleged unlawful
activity and the harm such alleged activity has caused
Tracfone May Serve Third-Party Discovery ...