DIMITRIOS LIAPIS, Applicant, v. Meta Platforms, Inc., Proposed Subpoenaed Party.
Case No. 24-mc-80267-PHK
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
May 5, 2025
PETER H. KANG, United States Magistrate Judge
ORDER GRANTING IN PART EX PARTE APPLICATION PURSUANT TO 28 U.S.C. § 1782 FOR AN ORDER DIRECTING DISCOVERY IN AID OF FOREIGN PROCEEDINGS; Re: Dkt. 1
This matter is before the Court on the ex parte application of Dimitrios Liapis (“Liapis“) for an order pursuant to
BACKGROUND
A. The Australian Proceeding
Liapis seeks to serve a subpoena on Meta for documents and ESI for use in connection with a foreign criminal proceeding that is currently pending in the District Court of Queensland,
Liapis, who is the defendant in the Australian Proceeding, stands accused of sexually assaulting the daughter of his former girlfriend when the victim was sixteen years old. [Dkt. 1 at 3]. On September 27, 2018, the alleged victim, S.F.,1 filed a report with the Western Australia Police Force alleging that Liapis sexually assaulted her in July 2018, during a family vacation in Queensland, Australia. Id. at 5. As evidence of the аlleged assault, S.F. provided the police with a screenshot of a message chain (“Message“), purportedly between herself and her then-boyfriend, regarding the incident. Id. The Message, a copy of which is attached to the instant application, reads, in pertinent part, as follows:
But the other night he touched my tit n [sic] ass then got on top of me kiss [sic] me [sic] cheek then I push him off me I ran off locked myself in a room cried n [sic] couldn‘t sleep the [sic] all night n [sic] it keeps on replay every [expletive] min [sic] I don‘t know what to [expletive] do[.]
[Dkt. 1-3 at 44].
On August 12, 2019, the Australian Crown Prosecutor charged Liapis with four counts of unlawful and indecent assault, in violation of § 352(1)(a) of the Australian Criminal Codе. Id. 3 ¶ 6. Each charge carries a maximum penalty of ten years of imprisonment. Id. Because Liapis‘s motion to stay the Australian proceedings was denied, trial is set to commence on June 2, 2025. [Dkt. 14 at 2-3].
The Message, which the Australian Crown Prosecutor has proffered as evidence that Liapis committed sexual assault, has apparently been a “hotly discussed piece of evidence” throughout the duration of the case. [Dkt. 1 at 6]. The Australian prosecuting authorities assert that (1) S.F. sent the Message, (2) at the time of the alleged assault, i.e., “during the Queensland holidays in July 2018, and not after these holidays,” and (3) she was talking about Liapis in the Message. Id. at 3-4.
In his
Liapis states that he has attempted to obtain additional information regarding the Message, first through discovery in the Australian criminal proceeding, and later, through issuance of foreign subpoenas to Meta. Id. at 6-11. According to Liapis, S.F. has identified three different Instagram accounts that she may have used to send the Message (but no longer has access to), as well as two different email addresses that she may have used in connection with her Instagram account (but no longer has access to). Id. at 6. Liapis states that the Australian prosecuting authorities “have refused to attempt to authenticate the Message by requesting information frоm Meta” and have also represented that they “cannot obtain account details relating to [S.F.]‘s Instagram accounts.” Id. at 7.
On March 15, 2024, Liapis served an Australian subpoena on Meta seeking information and metadata regarding the Message. Id. at 8. On April 16, 2024, Meta responded to the foreign subpoena with numerous objections, including that Meta was not subject to Australian law; that
On May 10, 2024, Liapis served a revised Australian subpoena on Meta, again seeking information regarding the Messаge. Id. at 9. On May 17, 2024, Meta served objections to the revised subpoena, asserting largely the same objections. Id. at 10. Liapis states that his counsel thereafter met and conferred with Meta‘s counsel “on numerous occasions” regarding the terms of a future proposed subpoena. Id. According to Liapis, “Meta remains firm that it will not respond to any Australian subpoena” based on jurisdictional objections. Id. at 11.
B. The § 1782 Application
Liapis filed the instant
- “Certify and authenticate” the Message.
- Documents and ESI “sufficient to identify the header information for the Message, including the date and time stamp, the usernames for both the senders and recipients, any and all metadata and IP addresses used for [the Message], sufficient to show when [the Message] was sent.”
- Date and time logs sufficient to show “when the direct Message was created by the Complainant‘s Accounts and the Recipient Account[.]”
- Date and time logs sufficient to show “when the dirеct Message was deleted by the Complainant‘s Accounts and the Recipient Account[.]”
Id. at 9-10.
The proposed subpoena further requests that Meta produce, for the date range of July 1, 2018 through the present, the following:
“Any and all communications between Meta and Complainant‘s Accounts regarding deletion of Complainant‘s Accounts[.]” - “Any and all requests by any third party to Meta for information about Complainant‘s Accounts or Recipient‘s Account, whether via formal legal process (subpoena, search warrant) or a request through Meta‘s law enforcement portal/Law Enforcement Online Request System[.]”
- “Any and all communications between Meta and Australian law enforcement, including but not limited to Queensland Police Service, Western Australia Police Force, Victoria Police, Department of Public Prosecutions or any U.S. law enforcement relating to the Complainant‘s Accounts or the Recipient Account.”
- “Basic subscriber information for the Complainant‘s Accounts and Recipient‘s Account, including but not limited to: vanity, account closure date, if applicable; name and e-mail address(es) and/or telephone number(s) for an account at the time of production; and date, time, and IP address of registration and all login and logout events.”
Id. at 10-11.
On October 29, 2024, this Court issued an Order instructing Liapis to serve a copy of his aрplication on Meta. [Dkt. 4]. On November 19, 2024, the Parties consented to Magistrate Judge jurisdiction. See Dkts. 5, 10; see also In re CPC Patent Techs. Pty. Ltd. v. Apple, Inc., 34 F.4th 801, 810 (9th Cir. 2022). That same day, Meta filed a response to Liapis‘s application, stating that it takes no position on the issuance of the subpoena, but reserves all rights and objections with respect to the subpoena if it does issue. [Dkt. 12].
LEGAL STANDARD
”
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter
rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. . . . The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
“Section 1782‘s statutory language has been distilled to permit district courts to authorize discovery where three general requirements are satisfied: (1) the person from whom the discovery is sought ‘resides or is found’ in the district of the district court where the application is made; (2) the discovery is ‘for use in a proceeding in a foreign or international tribunal‘; and (3) the application is made by a foreign or international tribunal or ‘any interested рerson.‘” Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019) (citing
Even where the statutory requirements are met, a district court retains discretion to determine what discovery, if any, should be permitted. Intel, 542 U.S. at 264; see Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir. 2002) (“Congress gave the federal district courts broad discretion to determine whether, and to what extent, to honor a request for assistance under
A district court‘s discretion is to be exercised in view of § 1782‘s twin aims: “providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts.” Id. at 252. There is no requirement that the
DISCUSSION
In light of the legal standards applicable to Liapis‘s
A. The Court has Authority to Grant the Requested Relief
As a threshold matter, this Court has authority to hear and decide the
Because the Court has jurisdiction to rule on the application, the Court next analyzes whether Liapis‘s application satisfies each of the threshold statutory requirements of
The statute first requires that the person from whom discovery is sought “resides or is found” in the district of the district court where the application is made.
The statute next requires that the discovery sought be “for use in a proceeding before a foreign tribunal.”
B. Discretionary Factors Weigh in Favor of Granting Liapis‘s Application
Because the Court has determined that Liapis‘s
The first discretionary factor considers whether the “person from whom discovery is sought is a participant in the foreign proceeding.” Intel, 542 U.S. at 247. “[W]hen the person
Here, Meta is not a party to the proceedings in Australia. Liapis represents that he would be unable to obtain the materials sought from Meta without a subpoena from this Court. Indeed, according to the application, Liapis has attempted to obtain materials from Meta using subpoenas issued in Australia, but Meta has objected to and resisted those attempts. [Dkt. 1 at 8-11]. Accordingly, this factor weighs in favor of granting Liapis‘s application. See Akimoto, 2022 WL 1157496, at *3 (“Here, Apple is not a party to the criminal proceedings in Japan. The first factor thus weighs in favor of granting leave to issuе the subpoena.“) (internal citation omitted).
The second discretionary factor is addressed to consideration of “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial assistance.” Intel, 542 U.S. at 264. This factor “focuses on whether the foreign tribunal is willing to consider the information sought.” In re Will Co., No. 21-mc-80211-JCS, 2021 WL 5322653, at *3 (N.D. Cal. Nov. 16, 2021) (quoting In re Varian Med. Sys. Int‘l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *4 (N.D. Cal. Mar. 14, 2016)). “Where there is no evidence suggesting that foreign courts would be unreceptive to the requested discovery, the second discretionary factor weighs in favor of the application.” Id. (citing In re Med. Corp. H&S, No. 19-mc-80107-SVK, 2019 WL 2299953, at *3 (N.D. Cal. May 30, 2019)).
The third discretionary factor is directed to considering whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.” Intel, 542 U.S. at 265. “A perception that an applicant has side-stepрed less-than-favorable discovery rules by resorting immediately to
Here, Liapis states that he is “not aware of any restrictions on proof-gathering procedures that would prohibit obtaining the requested discovery through this Application and the Subpoena.” [Dkt. 1 at 19]. Liapis states that the information that he seeks to obtain from Meta is “highly relevant if not crucial” to his defense against pending criminal charges. Id. at 4. He states that the Australian court would likely accept the materials into evidence. Id. at 18. The Court finds nothing in the present record to suggest that Liaрis is attempting to evade Australian discovery rules, or any policy of Australia or the United States restricting such proof-gathering. Indeed, Liapis cites several precedents indicating that discovery obtained under
The fourth discretionary factor is directed to examining whether the discovery request is “unduly intrusive or burdensome.” Intel, 542 U.S. at 265. “Requests are unduly intrusive and burdensome where they are not narrowly tailored, request confidential information, and appear to be a broad ‘fishing expedition’ for irrelevant information.” In re Ex Parte Application of Qualcomm Inc., 162 F. Supp. 3d 1029, 1043 (N.D. Cal. 2016) (citation omitted). “[U]nduly intrusive or burdensome requests may be rejected or trimmed.” Intel, 542 U.S. at 265.
“The proper scope of discovery arising out of a
Liapis argues that his proposed subpoena requesting discovery from Meta is narrowly tailored, in that it seeks information pertaining only to “the date and time the Message was sent, as well as information about whether the Australian police or prosecutor attempted to obtain this information.” [Dkt. 1 at 20]. Liapis states that the scope of discovery sought is restricted to “only those materials necessary to defend himself in the Australian Action, and . . . the requested documents are instrumental, if not essential, to serve that purpose.” Id. Finally, Liapis argues that Meta would nоt be unduly burdened by the discovery request because “all the materials are likely stored electronically, and can be isolated and retrieved through automated technology.” Id.
Because Meta has reserved any objections to the scope of the subpoena for resolution after the
Howevеr, because Meta has raised the issue of the applicability of the SCA, the Court notes that even if an applicant satisfies the
However, Request E(5) of the proposed subpoena explicitly seeks “[a]ny and all communications between Meta and Complainant‘s Accounts regarding deletion of Complainant‘s
However, to the extent Request E(5) to E(7) do not seek the content of stored electronic communications, they are not violative of the SCA. For example, Request E(6) seeks copies of “formal legal process (subpoena, search warrant) or a request through Meta‘s law enforcement portal/Law Enforcement Online Request System” discussing either Complainant‘s Account or Recipient‘s Account. [Dkt. 1-2 at 10-11]. These specific requests would not appear to implicate the SCA. And Requests E(5) and E(7) are broadly drafted and would inсlude communications which are not stored electronic communications. Thus, the Court GRANTS IN PART the
Further, because the Australian proceeding is set for trial on June 2, 2025, the Court notes that Request D(1) does not, as written, seek any documents but rather simply states “Certify and authenticate ‘the message.‘” [Dkt. 1-2 at 10]. The Court assumes that this is an inadvertent
Based on the record presented, the Court concludes that the fourth disсretionary factor weighs in favor of authorizing service of the subpoena upon Meta, subject to the limitations discussed herein. Accordingly, the Court finds that all four discretionary factors weigh in favor of granting the instant ex parte application. The fact that Meta does not oppose the relief sought by Liapis in his application (subject to reservation of rights to object to the underlying subpoena) further supports the exercise of discretion to grant the application. Should Meta object to the subpoena after formal issuance, the Parties are expected to and ORDERED to comply with the Court‘s Standing Order on Discovery to attempt to resolve any disputes as to the subpoena prior to filing a motion regarding any such disputes. To be clear, this Court‘s ruling does not preclude a properly presented motion to enforce, quash, or modify the subpoena consistent with the Court‘s Standing Order. The Parties are encouraged to engage in prompt, good faith efforts to resolve any disputes, including presenting any proposed stipulations or proposed protective orders to the Court.
Under
Here, Liapis‘s application seeks issuance of a subpoena for documents and ESI. The proposed subpoena attached to the application makes repeated reference to the procedures for the
CONCLUSION
Having considered all relevant factors and legal requirements, and in the exercise of the Court‘s discretion, the Court finds that GRANTING IN PART Liapis‘s
Accordingly, IT IS ORDERED THAT:
- The instant
§ 1782 application [Dkt. 1] is GRANTED IN PART as discussed hеrein. This Order is WITHOUT PREJUDICE to any argument or objection that may be asserted in a motion to quash or modify the subpoena by Meta. - Liapis is authorized to serve upon Meta a subpoena as modified and in compliance with the limitations set forth herein, and, where not limited by this Order, substantially in the form annexed as Exhibit B to his application [Dkt. 1-2]. Said subpoena shall comply with the requirements set forth in
Federal Rule of Civil Procedure 45 , including the geographic limits on location for production of documents in response thereto. Service of the subpoena shall be completed by no later than May 10, 2025. When serving the subpoena, Liapis shall attach to the subpoena a copy of this Order. - Meta shall have fourteen (14) cаlendar days from the date it receives the subpoena to serve objections, if any, to the subpoena. The Parties are ORDERED to promptly meet and confer to attempt to resolve or at least narrow any such disputes. With regard to any such dispute concerning the subpoena, should one arise, counsel for Liapis and Meta shall
review, be familiar with, and follow this Court‘s procedures for resolving discovery disputes as set forth in the undersigned‘s Standing Order for Discovery available on the Northern District of California‘s website. - If, after notice is provided and after the deadlines set forth herein have passed, the Parties have not filed any motions regarding disputes concerning the subpoena, Meta shall produce (pursuant to Rule 45) the requested documents and ESI, along with a notarized verification signed under penalty of perjury, to counsel for Liapis.
- Within five (5) calendar days after Meta has produced the requested documents and information in compliance with the subpoena, the Parties shall file a joint status report, advising the Court as to the status of this case and whether any further issues relating to the subpoena remain pending.
- As noted herein, the Court has referred to victim S.F. by her initials only in this Order. While S.F. is currently an adult, she was a minor at the time of the alleged assault. The Court is particularly concerned that victim S.F. is not a party to the instant proceeding and has not appeared through counsel. Public disclosure of personally identifying information of a victim of sexual abuse implicates privacy concerns. See
Fed. R. Civ. P. 26(c)(1) (“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.“). Here, there appears to be no reason why public filing in this Court of documents containing personally identifying information of victim S.F. is necessary or warranted, and protecting her from annoyance or embarrassment by redacting such information is the least restrictive measure to address any such concerns. Accordingly, the Court ORDERS counsel for Liapis to prepare and file, by no later than May 30, 2025, redacted versions of the Application [Dkt. 1], including supporting declarations and exhibits, which redact from those documents any personally identifying information of victim S.F. (including but not limited to her full name). - The Clerk is DIRECTED TO SEAL the Application [Dkt. 1] and its supporting declaration and exhibits, so that those materials are only accessible to counsel for Liapis,
counsel for Meta, and the Court.
IT IS SO ORDERED.
Dated: May 5, 2025
PETER H. KANG
United States Magistrate Judge