NCS Pearson, Inc. v. Doe, Case No. 20-cv-594 (SRN/ECW)
| Decision Date | 10 November 2020 |
| Docket Number | Case No. 20-cv-594 (SRN/ECW) |
| Parties | NCS PEARSON, INC., Plaintiff, v. JOHN DOES (1 THROUGH 21), Defendants. |
| Court | U.S. District Court — District of Minnesota |
This matter is before the Court on NCS Pearson, Inc.'s Renewed Motion for Leave to Conduct Expedited Third-Party Doe Discovery (Dkt. 14).
Plaintiff NCS Pearson, Inc. ("NCS Pearson" or "Plaintiff") offers computer-based testing solutions through secure, electronic test delivery. (Dkt. 1 ¶ 2.) More than 450 credential owners around the world choose NCS Pearson to help develop, manage, deliver, and grow their testing programs, ranging from online practice tests to secure proctored exams. (Id.) NCS Pearson's services require it to work with credential owners that may, for example, require examinations for candidates to earn professional or educational certifications. (Dkt. 9 ¶ 2.)
NCS Pearson has brought causes of action against twenty-one JOHN DOES for (1) violation of the Lanham Act, 15 U.S.C. § 1051 et seq.; (2) violation of the CAN-SPAM Act of 2003, 15 U.S.C. § 7701 et seq.; (3) defamation; and (4) tortious interference with business expectancy. (Dkt. 1 ¶ 1.) NCS Pearson seeks injunctive relief, monetary damages, and other appropriate relief to stop Defendants' harassing and defamatory emails and the misleading alteration of its confidential communications that is likely to cause confusion over the origin, sponsorship, or approval of NCS Pearson's commercial activities. (Id.) NCS Pearson, media outlets, and NCS Pearson clients have received several defamatory emails that have portrayed NCS Pearson and its employees in a negative light, including: emails (1) implying that NCS Pearson engages in unethical business practices, (2) making vulgar comments about NCS Pearson employees, (3) altering external business communications and sending the modified versions to clients as though they represent NCS Pearson's practices and operations, and (4) initiating the transmission of emails with materially false or misleading header information. (Id. ¶ 13.)
As to JOHN DOE 1, the Complaint alleges that on or around April 4, 2019, NCS Pearson, the media, and NCS Pearson clients received an email from xconifyacademy@gmail.com purporting to be from Tarique Ahmed, Co-Partner of the Xconify Academy in Brussels, Belgium. (Id. ¶ 16.) The email falsely alleged that NCS Pearson has instructed its test center network to give preferential treatment to an NCS Pearson client to take market share from an NCS Pearson competitor. (Id.) The sender of the email altered a confidential communication sent to test centers and then included the altered information in their email. (Id.) NCS Pearson also received a similar email from the same email address in 2018, in which "he" made disparaging comments about employees. (Id. ¶ 17.) Based on the email address, physical address listed from thesender, and name, it appears that Xconify was once an NCS Pearson Authorized Select test center named XCUELA. (Id.) On information and belief, that organization had no record of a person named Tarique Ahmed. (Id.) As part of the present Motion, Plaintiff attached a copy of the April 4 email that it initially forwarded to Google, Inc. ("Google"), which contains the alleged representations and the purported altered email from NCS Pearson. (Dkt. 10-1 at 34 through 39 of 47.)2
In addition, on or around April 15, 2019, a person using the xconifyacademy@gmail.com email address contacted NCS Pearson, its clients, and the media, and falsely claimed that NCS Pearson is engaged in "unethical business practices," described several current and former NCS Pearson employees as "corrupt," and falsely claimed that NCS Pearson and its employees receive kickbacks for manipulating certain test-taking markets. (Dkt. 1 ¶ 18.)
As to JOHN DOE 2, the Complaint alleges that on or around April 5, 2019, an email was sent to a variety of recipients within NCS Pearson, media outlets, competitors, and clients from newhorizonslearningcentre@gmail.com, with the sender claiming to be Tony Albert, New Horizon's Computer Learning Centre, East Syracuse, New York. (Id. ¶ 19.) This individual alleged that NCS Pearson is "heading for doom because of corrupt officials, customer unfriendly business practices and over confidence." (Id.) The individual further alleged that corrupted security personnel are given kickbacks and allow the sale of client IP, candidate demographics, and other details collected from testcenters. (Id.) The sender purporting to be "Tony Albert" has no affiliation with New Horizon's East Syracuse Computer Learning Center. (Id. ¶ 21.)
As to JOHN DOE 3, the Complaint alleges that on or around July 7, 2016, an email was sent to NCS Pearson personnel and clients from wahshaikhy@gmail.com, purporting to be from Wahjid Shaikh of Madras Computer Centre in India, which falsely claimed that NCS Pearson personnel are involved in a kickback scheme and participating in cartel activity. (Id. ¶ 22.)
With respect to JOHN DOES 4-5, the Complaint alleges that on or around March 20, 2019, an email was sent to NCS Pearson personnel, competitors, and clients, as well as Indian government email addresses, from pradyutmishraiijt@gmail.com, purporting to be from Pradyut Mishra. This email forwarded an email from neerajawasthinewhorizon@gmail.com purporting to be from Neeraj Awasthi at New Horizons of New Delhi, India. (Id. ¶ 23.) The forwarded email falsely accused NCS Pearson and others of tax avoidance, cartel activity including blacklisting of uncooperative participants, and cash kickbacks. (Id.) That email also forwarded another purporting to be from Pradyut Mishra that accused NCS Pearson of taking kickbacks. (Id.) Neither Pradyut Mishra nor Neeraj Awasthi are who they purport to be. (Id.) The email string also includes a defamatory email from xconifyacademy@gmail.com purporting to be from Tarique Ahmed, and therefore NCS Pearson also believes that the sender or senders are working with the other Defendants. (Id.)
As to JOHN DOE 6, an email from prudentworldtech@gmail.com purporting to be from Charles Truman of Logitrain was sent on or around May 15, 2019 to NCSPearson personnel, the media, NCS Pearson clients and competitors, and United States and foreign government email addresses. (Id. ¶ 24.) The email falsely claimed that NCS Pearson was participating in an immigration fraud scheme in Australia, is corrupt, and is engaging in "malpractices" in the United States and Australia. (Id.) The email forwarded another defamatory email from xconifyacademy@gmail.com. (Id.) On information and belief, the real sender is not Charles Truman. (Id.)
As to JOHN DOE 7, the Complaint alleges that on or around April 11, 2019, an email from surynarayanbiz@gmail.com purporting to be from Suporte Informatica of Brazil was sent to NCS Pearson, its customers and competitors, and various media outlets, which falsely accused NCS Pearson of being in a "monopoly position" and forwarded an email from prudentworldtech@gmail.com accusing NCS Pearson personnel of participating in a kickback scheme, among other unethical conduct. (Id. ¶ 25.) Another email from "Suporte Informatica" on or around May 22, 2019 to NCS Pearson personnel and various government email addresses in the United States, Australia, and other countries forwards another defamatory email from "Tony Albert" of New Horizons. (Id.)
As to JOHN DOE 8, the Complaint alleges that emails have been sent to NCS Pearson, United States and foreign government email addresses, and the media from sachinsonigimit@gmail.com, purporting to be from Sachin Soni. (Id. ¶ 26.) One email sent on or around September 18, 2018 falsely accused NCS Pearson personnel of taking bribes in India and another email sent on or around October 9, 2018 falsely accused NCS Pearson personnel of taking kickbacks in exchange for preferential allotments of testcenters in India. (Id.) NCS Pearson sent an example of offending emails from this account to Google, but they do not appear to include the emails referenced in the Complaint. (Dkt. 10-1 at 7-32 of 47.)
With respect to JOHN DOE 9, the Complaint alleges that NCS Pearson and its competitors have received emails from sanjeevshris@gmail.com purporting to be from Sanjeev Shrivastava of India, including one on October 24, 2018 where the sender accused NCS Pearson personnel of being "a petty thief" and of "openly promoting unethical and unfair practices in assessment" such as guaranteed exam passing in exchange for bribes. (Dkt. 1 ¶ 27.)
As to JOHN DOE 10, the Complaint alleges that on or around May 30, 2019, NCS Pearson and a competitor received an email from sminternetwork@gmail.com, purporting to be from Mohd Arif, which falsely described NCS Pearson as "nothing but house of cards [sic]" and accused the company and its personnel of corruption and engaging in cartel activity in India. (Id. ¶ 28.)
As to JOHN DOE 11, the Complaint alleges that on or around August 7, 2018, NCS Pearson and its customers received an email from swapnikale1@gmail.com purporting to be from Swapnil Kale of the QMS Academy in India, and the email falsely claimed that NCS Pearson personnel and affiliates were participating in a kickback scheme in India and "committing a crime." (Id. ¶ 29.)
With respect to JOHN DOE 12, the Complaint alleges that on or around August 6, 2019, NCS Pearson, its customers and competitors, and the media received an email from gowrisit007@gmail.com purporting to be from Gowri S. of Elitech Consulting PVT inIndia, which falsely accused NCS Pearson and its competitors of engaging in "corrupt cartel" activity in India. (Id. ¶ 30.) As part of the present Motion, Plaintiff attached a copy of the August 6 email that it initially forwarded to Google. (Dkt. 10-1 at 45-47 of 47.)
As to JOHN DOE 13, the Complaint alleges that on or around October 10, 2018, an email was sent to NCS Pearson, its potential customers, and its competitors from...
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