690 F.Supp.3d 1011
N.D. Cal.2023Background
- The National Court Administration of the Republic of Korea sent a Letter of Request under the Hague Evidence Convention asking the U.S. to obtain identifying information from Google for a civil defamation-style case (Matter of Seongbeom) pending in Korea.
- The U.S. (via the Attorney’s Office) filed an ex parte 28 U.S.C. § 1782 application to issue a subpoena to Google because Google would produce the data only in response to a U.S. subpoena.
- Google consented to magistrate-judge jurisdiction and stated it did not oppose issuance of a subpoena but reserved all rights to object to the subpoena’s terms.
- The court found the three statutory § 1782 requirements satisfied (Google found in N.D. Cal.; discovery "for use" in a foreign tribunal; request made by a foreign tribunal via the DOJ Central Authority) and exercised discretion to grant the application.
- The court appointed AUSA Andrew Mainardi as the § 1782 "person"/Commissioner to issue and receive compliance with the subpoena, set limits on the Commissioner’s authority, and required compliance with Federal Rules of Civil Procedure (notably Rule 45 logistics).
- The court directed that Google provide notice to the account holder(s), rejected ordering Google to send documents directly to Korea (citing Rule 45’s 100‑mile compliance limit), and instructed the Commissioner to receive materials and forward them to the Korean court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to grant § 1782 subpoena to Google | §1782 permits U.S. courts to order discovery from a person found in the district for use in a foreign proceeding; DOJ applied on behalf of Korean court | Google required a U.S. subpoena but did not oppose issuance (reserved rights) | Court found statutory requirements met and had jurisdiction; granted §1782 relief |
| Whether Intel discretionary factors support discovery | All four Intel factors favor disclosure: Google is a non‑party, Korean tribunal is receptive (letter of request), no circumvention of Korean or U.S. policy, request narrowly tailored | Potential First Amendment concerns if speaker were U.S. citizen; Google reserved rights to object to subpoena scope | Court concluded all Intel factors weigh in favor; First Amendment policies not determinative on this record |
| Appointment and qualifications of a § 1782 Commissioner | Appointment of AUSA Mainardi is appropriate to receive materials, administer oaths, and transmit to Korean court; DOJ sought appointment | Google raised no objection to appointment (reserved rights) | Court appointed AUSA Mainardi, explaining qualifications and limits (impartiality, competence, no interest in outcome) |
| Subpoena form, place of compliance, and notice to account holder(s) | DOJ requested Google produce directly to Korean court with verification and notify account holder(s) | Google reserved rights regarding underlying subpoena; logistical concerns about foreign delivery | Court ruled subpoena must comply with Fed. R. Civ. P. (Rules 26 & 45), rejected directing compliance beyond Rule 45’s 100‑mile limit, required account‑holder notice, and directed Commissioner to receive and forward materials |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (establishes discretionary factors courts use in § 1782 analysis)
- Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522 (U.S. 1987) (discusses Hague Evidence Convention and international evidence procedures)
- Khrapunov v. Prosyankin, 931 F.3d 922 (9th Cir. 2019) (summarizes § 1782’s three statutory requirements)
- ZF Auto. US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (U.S. 2022) (explains comity as § 1782’s animating purpose)
- El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (U.S. 1999) (treaties, including the Hague Convention, are "law of the land")
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (distinguishes protected opinion from actionable false statements in defamation context)