703 F.Supp.3d 1046
N.D. Cal.2023Background
- Path Network, Inc. and its subsidiary Tempest allege former employee Curtis Gervais (and Game Server Kings CEO Rene Roosen) used Discord accounts/aliases (e.g., “Archetype,” “cmg,” “Renual”) to access/confidentially disclose Path/Tempest data, defame Plaintiffs, and attempt to ransom stolen source code.
- Ontario Superior Court issued pre‑litigation Anton Piller and related orders directing preservation/turnover of electronic evidence, including Discord messages identified in the Canadian orders.
- Applicants filed an ex parte 28 U.S.C. § 1782 application in the N.D. Cal. seeking a subpoena to Discord for passwords, account data, login histories, and message contents for specified users/aliases; Discord agreed to produce non‑content account data and message headers but objected to content and passwords.
- Court found statutory 1782 requirements satisfied (Discord resides in N.D. Cal.; discovery is relevant to the Canadian proceeding; Applicants are interested persons) and discretionary Intel factors generally favored discovery from this non‑party.
- Court denied the subpoena as drafted: it violated Rule 45’s 100‑mile production limit, was overbroad/lacked adequate identifiers (risking third‑party data), and thus was unduly burdensome; the court ordered meet‑and‑confer and allowed a narrowed subpoena.
- On the Stored Communications Act (SCA), the court held (as a matter of first impression in this context) that passwords constitute “contents” protected by the SCA and that Gervais did not implicitly or expressly consent to disclosure; the court entered a protective order and limited litigation‑hold relief for accounts Discord could identify.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether §1782 statutory factors are met (residency, relevance, interested person) | §1782 applies because Discord is headquartered in N.D. Cal.; the requested data is relevant to the Canadian Anton Piller orders and litigation; Applicants are parties in Canada | Discord did not meaningfully contest residency or Applicants’ status; dispute focused on scope | Court: All three statutory requirements satisfied (took judicial notice Discord’s principal place in SF) |
| 2. Whether discretionary Intel factors support issuing subpoena to non‑party Discord | Intel factors favor aid to foreign litigation and non‑party discovery to obtain otherwise unavailable evidence | Discord emphasized burdens and intrusiveness of the proposed subpoena | Court: Intel factors favor discovery generally, but the proposed subpoena is overbroad and must be narrowed |
| 3. Whether the proposed subpoena’s scope and place of production are proper (Rule 45 and overbreadth) | Applicants sought passwords, all account data, login history, and full messages, to be produced in Los Angeles | Discord agreed to produce non‑content account data and headers, objected to content/password production and to production location beyond 100 miles | Court: Subpoena as drafted violates Rule 45 (100‑mile rule), is not narrowly tailored, risks undue burden/third‑party intrusion; GRANT‑IN‑PART leave to serve a revised subpoena after meet‑and‑confer |
| 4. Whether passwords and message contents may be produced under the SCA and whether account owner consented | Applicants argued passwords are not SCA “contents” and relied on Canadian orders/evidence collection to show consent or waiver | Discord argued passwords are information relating to content and that no lawful consent (express or implied) exists | Court: Passwords qualify as “contents” under the SCA and are protected; Gervais did not consent (explicitly or implicitly) to disclosure; therefore passwords and message contents cannot be ordered produced absent lawful exception |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (framework for §1782 discretionary factors)
- Khrapunov v. Prosyankin, 931 F.3d 922 (9th Cir.) (statutory requirements under §1782)
- Zynga Priv. Litig., 750 F.3d 1098 (9th Cir.) (definition of “contents” under the SCA/Wiretap Act)
- Theofel v. Farey‑Jones, 359 F.3d 1066 (9th Cir.) (SCA protects privacy of stored communications akin to trespass principles)
- Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726 (9th Cir.) (foreign‑court disclosure obligations do not automatically establish implied consent for third‑party providers)
- Gilday v. Dubois, 124 F.3d 277 (1st Cir.) (distinguishing authentication identifiers from protected content under Wiretap Act context)
- United States v. Rodgers, 461 U.S. 677 (statutory use of “may” implies discretion)
- Calhoun v. Google LLC, 526 F. Supp. 3d 605 (N.D. Cal.) (implied consent to disclosure is narrowly applied)
- In re Yahoo! Mail Litig., 7 F. Supp. 3d 1016 (N.D. Cal.) (distinguishing Wiretap Act protection of in‑transit communications from SCA protection of stored communications)