311 F. Supp. 3d 1101
N.D. Cal.2018Background
- Sam Rainsy, leader of the Cambodian National Rescue Party, lives in exile and faces multiple criminal and civil prosecutions in Cambodia (defamation and incitement) arising from his Facebook posts.
- Rainsy filed an ex parte 28 U.S.C. § 1782 application seeking third-party discovery from Facebook (documents and a Fed. R. Civ. P. 30(b)(6) deposition) to use in the Cambodian proceedings.
- Facebook opposed, arguing Rainsy was not an "interested person," the requests were irrelevant/overbroad, and disclosure would violate the Stored Communications Act (SCA).
- The court found Rainsy had presented sufficient evidence that proceedings existed in Cambodia and that he is an interested person under § 1782, but many requests were not sufficiently tied to the foreign proceedings.
- Court held much of the subpoena was overbroad (no time limits; wide subject scope) and that disclosure of identities of users who "liked" Hun Sen’s page would likely constitute protected "contents" under the SCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782's statutory requisites are met (person found in district; use in foreign proceeding; applicant is interested) | Rainsy: Facebook is in district; Cambodian actions exist and discovery would be used in those proceedings | Facebook: Rainsy failed to show actual foreign proceedings; thus not an "interested person" | Court: Rainsy met § 1782 prongs — Facebook located in district and Rainsy presented sufficient evidence he is an interested litigant in Cambodian actions |
| Whether requested discovery is "for use" in foreign tribunal and relevant to pending Cambodian cases | Rainsy: Requests (esp. re: false "likes") are relevant to defending defamation/incitement claims and to show conspiracy | Facebook: Requests are not related or are speculative; some requests seek irrelevant material | Court: Narrow categories (documents 1–2; deposition topics 5 and 8(a)) related to "likes" could be relevant; many other categories are not relevant |
| Whether Intel discretionary factors counsel for or against granting § 1782 relief | Rainsy: Intel factors satisfied; needs evidence Facebook (a nonparticipant) cannot be compelled in Cambodia | Facebook: Requests are burdensome, implicate comity, and may circumvent foreign procedures | Court: Intel supports limited aid — Facebook is nonparticipant; comity concerns minimal; but many requests are unduly broad and burdensome without time limits |
| Whether disclosure would violate the Stored Communications Act (SCA) | Rainsy: Seeks only non-content metadata or publicly-available information (or falls within exceptions) | Facebook: Identities of users who "liked" a page and communications are "contents" and disclosure is prohibited | Court: "Likes" convey approval and can be "contents"; SCA bars disclosure of user identities for likes and other content without a valid statutory exception |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (framework for § 1782 statutory requisites and discretionary Intel factors)
- Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) ("liking" on Facebook communicates user approval; treated as speech)
- City of Ladue v. Gilleo, 512 U.S. 43 (1994) (identity of speaker is integral to certain communications)
- In re Zynga Privacy Litig., 750 F.3d 1098 (9th Cir. 2014) (distinguishing header/technical metadata from protected communication contents)
- Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) (description of Facebook as social network and users sharing information)
- Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004) (SCA prohibits provider disclosure of stored communication contents)