UNITED STATES OF AMERICA, Applicant, v. GOOGLE LLC, Proposed Subpoenaed Party.
Case No. 23-mc-80149-PHK
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
September 5,
MEMORANDUM OF DECISION RE ORDER GRANTING EX PARTE APPLICATION FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 PERMITTING DISCOVERY FOR USE IN A FOREIGN PROCEEDING Re: Dkt. No. 10
INTRODUCTION
On July 3, 2023, this Court issued an Order granting the ex parte application of the United States of America (“USA“) for an order pursuant to
BACKGROUND
I. PROCEDURAL BACKGROUND
On January 3, 2023, the National Court Administration of the Republic of Korea (hereinafter, “the South Korean Court“) issued a Letter of Request under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555 (“Hague Evidence Convention“), requesting international judicial assistance to obtain certain evidence from Google in connection with a civil action currently pending before the Gunsan Branch of Jeonju District Court 68 in Jeollabuk-do, Republic of Korea, captioned Matter of Seongbeom, Foreign Reference Number 2022-F-3852. [Dkt. 1-2 at 1-2, 4-12]. In its Letter of Request, the South Korean Court seeks any information or documents that Google has regarding “[t]he personal information (Name, Gender, Phone Number, Date of Birth, etc.) of the [individual(s)] who signed up for your company and used gonggoncha@gmail.com between February 1, 2022 and February 28, 2022.” Id. at 10. The Letter of Request was sent to the United States Department of Justice‘s Office of International Judicial Assistance (“OIJA“) in Washington, D.C., which serves as the USA‘s Central Authority for receiving letters of request under the Hague Evidence Convention. Id. at 7; see Yanbei Andrea Wang, Exporting American Discovery, 87 U. CHI. L. REV. 2089, 2104 (2020) (discussing procedures for handling requests for international judicial assistance under the Hague Evidence Convention). The Letter of Request was then transmitted to the United States Attorney‘s Office for the Northern District of California, in accordance with
On January 23, 2023, Assistant United States Attorney Andrew S. Mainardi (“AUSA Mainardi“), on behalf of the USA, transmitted the Letter of Request to Google‘s legal department in Mountain View, California, in an effort to obtain the information sought by the South Korean Court voluntarily from Google. Id. Google‘s legal counsel, in response, informed AUSA Mainardi that Google would provide the information sought by the South Korean Court only pursuant to a United States federal court subpoena. Id. at 2. Accordingly, to execute the South Korean Court‘s
II. THE UNDERLYING FOREIGN PROCEEDING AND THE § 1782 APPLICATION
The underlying South Korean case captioned Matter of Seongbeom, Foreign Reference Number 2022-F-3852, is a civil proceeding in which the plaintiff, Ham Seongbeom, alleges that the defendant, whose identity is unknown, conveyed false information regarding the plaintiff‘s sexual history by means of a Google messenger account to nonparty Yoon Jihye less than ten days before the plaintiff‘s wedding to Yoon Jihye. [Dkt. 1-2 at 10-11]. The plaintiff claims “mental damage” resulting from the defendant‘s alleged misconduct. Id. The South Korean Court, on behalf of the plaintiff‘s attorney, requests information regarding the defendant‘s identity from Google. Id. at 8-11. The Letter of Request specifically seeks any information or documents that Google has regarding “[t]he personal information (Name, Gender, Phone Number, Date of Birth, etc.) of the [individual(s)] who signed up for your company and used gonggoncha@gmail.com between February 1, 2022 and February 28, 2022.” Id. at 4, 10. Google requires a subpoena to provide the requested information. Id. at 2.
The USA filed its § 1782 application on May 23, 2023. [Dkt. 1]. In its supporting memorandum, the USA asks the Court for an order appointing AUSA Mainardi as Commissioner for the purpose of issuing the requested subpoena to Google to execute the Letter of Request. [Dkt. 1-1 at 1-2]. The USA provided a copy of the proposed subpoena with its application. [Dkt. 1-2 at 21-23].
On May 26, 2023, this Court issued an Order instructing the USA to serve a copy of the application and that Order on Google. [Dkt. 5]. The May 26th Order set a deadline for Google to consent or decline Magistrate Judge jurisdiction in this matter. Id. The USA previously consented, and on June 27, 2023, Google also consented to Magistrate Judge jurisdiction in this matter. [Dkts. 4, 8]. Subsequently, on June 30, 2023, Google filed a response to the USA‘s application, stating that Google “does not oppose issuance of the subpoena, but it reserves all rights and objections with respect to the subpoena.” [Dkt. 9 at 2]. On July 3, 2023, this Court issued its Order granting the § 1782 application. [Dkt. 10].
DISCUSSION
While the Court‘s July 3rd Order analyzed the procedural and substantive issues leading to granting the requested § 1782 application, the Court sets forth herein further detailed discussion of the legal issues raised by the USA‘s application and the unique international discovery doctrines raised by the application. In sum, the USA‘s § 1782 application seeks an order appointing as Commissioner AUSA Mainardi to serve upon Google a subpoena for the information requested by the South Korean Court in its Letter of Request under the Hague Evidence Convention. [Dkt. 1-1 at 1-2]. The Court first considers whether it has the authority to issue the subpoena and then determines whether discretionary factors favor its issuance.
I. JURISDICTION
As a threshold matter, this Court has jurisdiction to hear and decide the § 1782 application because the USA and Google have both consented to Magistrate Judge jurisdiction. See
Foreign tribunals and parties may pursue international judicial assistance in the United States through diplomatic channels, according to international law, or under federal or state statutes. Eileen P. McCarthy, A Proposed Uniform Standard for U.S. Courts in Granting Requests for International Judicial Assistance, 15 FORDHAM INT‘L L. J. 772, 775 (1992). Invoked here by the South Korean Court, the Hague Evidence Convention is a multilateral treaty that “prescribes certain procedures by which the judicial authority in one contracting state may request evidence located in another contracting state.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 524 (1987); see Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231. The Hague Evidence Convention affords each signatory nation the use of the judicial process of other signatory nations where such assistance is needed in civil or commercial matters “to facilitate the transmission and execution of Letters of Request and to further the accommodation of the different methods which they use for this purpose.” Hague Evidence Convention at pmbl.
The USA and the Republic of Korea are both signatories to the Hague Evidence Convention. See Hague Conference on Private International Law, Status Table for the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid=82 (last visited August 29, 2023). As a treaty ratified and acceded to by the United States, Aerospatiale, 482 U.S. at 524 & n.1, the Hague Evidence Convention is “the law of this land,” on an equal footing with acts of Congress, and binding on the courts. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999); see also State of Mo. v. Holland, 252 U.S. 416, 434 (1920);
Article 9 of the Hague Evidence Convention states that “[t]he judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.” In the United States,
II. STATUTORY REQUIREMENTS
“Section 1782 is the product of congressional efforts, over the span of nearly 150 years, to provide federal-court assistance in gathering evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). The statute reads, in pertinent part:
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. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. 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 person.‘” Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019) (citing
A. Residency of Discovery Target in the Northern District of California
The Court finds that the USA‘s application satisfies each of the threshold statutory requirements of § 1782. 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.
Here, Google‘s headquarters are in Mountain View, California, which is located within the geographic boundaries of the Northern District of California. See bizfile Online, Cal. Sec‘y of State, https://bizfileonline.sos.ca.gov/search/business (search for “Google LLC” or file no. 201727810678) (last visited on August 1, 2023) (Google‘s “principal address” in Mountain View); Contact Us, About Google, https://www.google.com/contact/ (last visited on August 1, 2023) (“Google HQ” in Mountain View); see also
The statute next requires that the discovery sought be “for use in a proceeding before a foreign tribunal.”
C. Discovery Request is Made by a Foreign Tribunal
Section 1782 finally requires that the discovery request be made by a foreign tribunal or interested party.
Accordingly, the Court finds that it has the authority to grant the relief sought by the USA in its § 1782 application. Khrapunov, 931 F.3d at 925.
III. THE COURT‘S DISCRETION TO AUTHORIZE THE REQUESTED DISCOVERY
“[A] district court is not required to grant a
The language of § 1782 itself does not provide specific guidance to district courts in exercising discretion under the statute. United States v. Sealed 1, Letter of Request for Legal Assistance from the Deputy Prosecutor Gen. of the Russian Fed‘n, 235 F.3d 1200, 1206 (9th Cir. 2000). The seminal case exploring the parameters of § 1782 is Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). In Intel, the Supreme Court delineated four nonexclusive factors that a district court should consider in determining whether or not to exercise its discretion under § 1782. Id. at 264-65. These discretionary factors
“Although the Court individually analyzes each discretionary factor, they are not stand-alone categorical imperatives but rather involve overlapping considerations, which are considered collectively by the [C]ourt.” In re Joint Stock Co. Raiffeinsenbank, No. 16-mc-80203-MEJ, 2016 WL 6474224, at *4 (N.D. Cal. Nov. 2, 2016) (quoting In re Action & Prot. Found., No. C 14-80076 MISC EMC (LB), 2014 WL 2795832, at *5 (N.D. Cal. June 19, 2014)) (internal quotation marks and alteration omitted). In evaluating a § 1782 application, the Court is not required to “address explicitly” each discretionary factor (nor even apparently issue a written order). Akebia Therapeutics, Inc. v. FibroGen, Inc., 793 F.3d 1108, 1112 (9th Cir. 2015) (citing Sealed 1, 235 F.3d at 1206). This 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.” Intel, 542 U.S. at 252; see also ZF Auto. US, Inc. v. Luxshare, Ltd., — U.S. —-, 142 S. Ct. 2078, 2088, 213 L.Ed.2d 163 (2022) (“[T]he animating purpose of § 1782 is comity: Permitting federal courts to assist foreign and international governmental bodies promotes respect for foreign governments and encourages reciprocal assistance.“).
The Court finds that each of the four discretionary factors set forth above supports the granting of the instant ex parte application.
A. Whether the Person from Whom Discovery is Sought is a Party to the Foreign Proceeding
The first discretionary factor asks the Court to consider whether the application seeks discovery from participants in the foreign proceeding. Intel, 542 U.S. at 247. “[W]hen the person from whom discovery is sought is a participant in the foreign proceeding[,] . . . the need for
Here, Google is not a party to the proceedings in South Korea. [Dkt. 1-1 at 5]. Accordingly, this factor weighs in favor of granting the USA‘s application. See In re TPK Touch Sols. (Xiamen) Inc., No. 16-mc-80193-DMR, 2016 WL 6804600, at *3 (N.D. Cal. Nov. 17, 2016) (finding the first discretionary factor to weigh in favor of granting the § 1782 application where the proposed subpoenaed party, HTC, was not a party to the foreign proceedings in China).
B. The Nature of the Foreign Tribunal, the Character of the Proceedings Underway Abroad, and the Receptivity of the Tribunal to U.S. Judicial Assistance
The second discretionary factor asks the Court to consider “the nature of the foreign
Indeed, this factor weighs in favor of discovery unless the foreign tribunal in question has expressly made it clear that it would not accept the evidence. Raiffeinsenbank, 2016 WL 6474224, at *5 (stating that, under this factor, “courts look for authoritative proof that a foreign tribunal would reject evidence obtained with the aid of § 1782“). A district court‘s ability to order discovery under § 1782 is not predicated on the discoverability or admissibility of the evidence sought in that foreign tribunal. See Intel, 542 U.S. at 260. Thus, this Court need not determine whether the information applicant seeks is admissible in the foreign jurisdiction. In re Seoul Dist. Crim. Ct., 555 F.2d 270, 723 (9th Cir. 1977). Rather, in the absence of authoritative proof that a foreign tribunal would reject evidence obtained with the aid of § 1782, this discretionary factor tends to support authorizing the requested discovery. See, e.g., Palantir Techs., Inc. v. Abramowitz, 415 F. Supp. 3d 907, 915 (N.D. Cal. 2019) (citation omitted); In re Med. Corp. H&S, 2019 WL 2299953, at *3 (“In the absence of evidence that Japanese courts would object to MCHS‘s discovery of the information sought in the subpoena, or that they object more generally to the judicial assistance of U.S. federal courts, the Court concludes that this factor weighs in favor of authorizing service of the subpoena.“).
In this case, the foreign tribunal is clearly receptive to judicial assistance, as the USA‘s application on its behalf here resulted from the Letter of Request submitted to the USA‘s Central Authority to receive such requests by the South Korean Court itself. [Dkt. 1-2 at 7-10]. Therefore, the second discretionary factor weighs in favor of granting the USA‘s application. See In re Request for Int‘l Jud. Assistance from 19th Civil Ct. of First Instance Istanbul, Turkey, No. 22-mc-80279-JSC, 2023 WL 420787, at *3 (N.D. Cal. Jan. 26, 2023) (“[T]hat a Turkish court requests the information indicates it is receptive to assistance [under § 1782].“).
C. Circumvention of the Foreign Court‘s Proof-Gathering Restrictions or Other Policies of the Foreign Court or of the United States
The third discretionary factor asks the Court to consider 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-stepped’ less-than-favorable discovery rules by resorting immediately to § 1782 can be a factor in a court‘s analysis.” In re Cathode Ray Tube (CRT) Antitrust Litig., No. C-07-5944-SC, 2013 WL 183944, at *3 (N.D. Cal. Jan. 17, 2013) (citing In re Caratube Int‘l Oil Co., 730 F. Supp. 2d 101, 107-08 (D.D.C. 2010)). Additionally, the perception that an applicant has immediately resorted to § 1782, bypassing the foreign court‘s proof-gathering,
On the other hand, absence of evidence of attempted circumvention of the foreign tribunal‘s proof-gathering procedures weighs in favor of an application under § 1782. See, e.g., In re Google, Inc., No. 14-mc-80333-DMR, 2014 WL 7146994, at *2 (N.D. Cal. Dec. 15, 2014); In re Eurasian Nat. Res. Corp. Ltd., No. 18-mc-80041-LB, 2018 WL 1557167, at *3 (N.D. Cal. Mar. 30, 2018); In re Honda, No. 21-mc-80167-VKD, 2021 WL 3173210, at *4 (N.D. Cal. July 27, 2021).
Here, the fact that the discovery request was initiated by the South Korean Court (rather than a private litigant) strongly suggests that the request is not an attempt to circumvent the Republic of Korea‘s proof-gathering restrictions. See In re Letter Rogatory—Request for Int‘l Jud. Assistance from the Harju Country Ct. in Est. Petition of Lyoness Eesi OÜ, No. 17-mc-80044-MEJ, 2017 WL 1436096, at *3 (N.D. Cal. Apr. 24, 2017) (“Where a foreign court has requested the information there is a presumption that the application is not an attempt to circumvent foreign proof-gathering procedure.“) (collecting cases). The Court finds nothing in the record suggesting that the instant ex parte application is an attempt to bypass proper proof-gathering procedures or any other discovery or disclosure-related policies of the Republic of Korea. Intel, 542 U.S. at 264-65; see In re Anahara, No. 22-mc-80063-JCS, 2022 WL 783896 (N.D. Cal. Mar. 15, 2022) (“Absence of evidence of attempted circumvention weighs in favor of an application.“).
In its evaluation of the third discretionary factor, the Court also must consider the extent to which the application conceals an attempt to circumvent any policies of the United States. Intel, 542 U.S. at 265. The Court notes that the instant application seeks to unmask an anonymous online speaker and subject them to legal action for their speech. At least two courts within this District have suggested that such requests may raise First Amendment concerns. See In re Planning & Devel. of Educ., Inc., No. 21-mc-80242-JCS, 2022 WL 228307, at *4 n.3 (N.D. Cal. Jan. 26, 2022) (positing that the third discretionary factor “may [] weigh against granting an application that conceals an attempt to contravene the First Amendment‘s purpose without justification[,]” and noting that “[e]ven where the speakers appear to be foreign citizens outside U.S. territory who do not possess rights under the U.S. Constitution, the principles underlying the First Amendment may counsel a court of the United States against exercising its discretion to aid in punishing speech that would be protected in this country“); In re Tagami, No. 21-mc-80153-JCS, 2021 WL 5322711, at *3 n.1 (N.D. Cal. Nov. 16, 2021) (same).
It is well-settled that United States citizens, whether inside or outside of United States territory, are protected by the First Amendment. In re Takada, No. 22-mc-80221-VKD, 2023 WL 1442844, at *3 (N.D. Cal. Feb. 1, 2023) (citing Agency for Int‘l Dev. v. Alliance for Open Soc‘y Int‘l, Inc., 570 U.S. 205 (2013)). Foreign citizens who are outside United States territory, by contrast, do not possess any rights under the United States Constitution. Zuru, Inc. v. Glassdoor, Inc., 614 F. Supp. 3d 697, 706 (N.D. Cal. 2022) (quoting Agency for Int‘l Dev. v. Alliance for Open Soc‘y Int‘l, Inc., 140 S. Ct. 2082, 2086 (2020)). From the materials describing the substance of the dispute in the South Korean Court, involving allegedly libelous, defamatory, or slanderous statements made about the personal sexual history of a resident of South Korea immediately prior to their wedding, the Court
The Court finds persuasive several recent opinions concluding that, where the record does not indicate that anonymous speakers are entitled to First Amendment protections, U.S. free-speech principles should not be determinative factors in a district court‘s evaluation of a § 1782 application. See hey, Inc. v. Twitter, Inc., No. 22-mc-80035-DMR, 2023 WL 3874022, at *7-8 (N.D. Cal. June 6, 2023) (holding third discretionary factor did not weigh against granting § 1782 application seeking the identity of anonymous speaker, where there was no evidence indicating that the speaker was entitled to First Amendment protections); Takagi v. Twitter, Inc., No. 22-mc-80240-VKD, 2023 WL 1442893, at *7 (N.D. Cal. Feb. 1, 2023) (rejecting assertion that subpoena seeking identity of anonymous speaker circumvented the U.S.‘s “pro-free speech policy,” because “First Amendment protections do not apply to non-citizens outside the territory of the United States“); Zuru, 614 F. Supp. 3d at 707 (“Although the United States may have a pro-free-speech policy, . . . it doesn‘t reflect a U.S. policy of protecting free speech around the world.“).
In this case, there is nothing in the present record indicating the unidentified defendant in the underlying South Korean civil action is entitled to First Amendment protections. Further, the plaintiff in the underlying proceeding alleges that the defendant knowingly made “false” statements that caused the plaintiff to suffer “mental damage.” [Dkt. 1-2 at 10]. Taking the plaintiff‘s allegations as true, the defendant‘s statements “likely would not be protected by the First Amendment even in the United States.” Tagami, 2021 WL 5322711, at *3 n.1; see Milkovich v. Lorain J. Co., 497 U.S. 1, 22 (1990) (discussing the necessary balance between ensuring “First Amendment protection for defendants in defamation actions” and recognizing society‘s “pervasive and strong interest in preventing and redressing attacks upon reputation“). Accordingly, without prejudice to any argument that might be raised in a motion to quash or modify the subpoena or any later evidentiary objections, the Court does not find that policies related to the First Amendment (or any other policies of the United States) warrant sua sponte denial of the USA‘s application at this stage of the proceedings.
The Court thus concludes that the third discretionary factor also weighs in favor of the requested discovery. See Tagami, 2021 WL 5322711, at *3 (finding the third discretionary factor to weigh in favor of discovery where the requested discovery was limited to records for identification purposes and there was no evidence that the applicant was attempting to circumvent foreign discovery rules or any policy of the United States); In re Yasuda, No. 19-mc-80156-TSH, 2020 WL 759404, at *5 (N.D. Cal. Feb. 14, 2020) (finding the third discretionary factor to weigh in favor of discovery where there was no evidence that the applicant was attempting to circumvent the foreign tribunal‘s proof-gathering restrictions).
D. Unduly Intrusive or Burdensome Discovery Requests
The fourth discretionary factor asks the Court to consider whether the discovery request is “unduly intrusive or burdensome.” Intel, 542 U.S. at 265.
Where, as here, a § 1782 application seeks discovery to identify an anonymous speaker, the fourth discretionary factor also considers, where applicable, the First Amendment‘s free speech guarantees and the potential chilling effect that granting the request would have on anonymous speech. Tokyo Univ. of Soc. Welfare v. Twitter, Inc., No. 21-mc-80102-DMR, 2021 WL 4124216, at *3 (N.D. Cal. Sept. 9, 2021). “As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without ‘fear of economic or official retaliation . . . [or] concern about social ostracism.‘” In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (quoting McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 341-42 (1995)).
The Court finds that the fourth discretionary factor also weighs in favor of granting the USA‘s application. The application, made on behalf of the South Korean Court, seeks private user information from Google in order to establish the identity of the defendant named in the civil action pending before the Gunsan Branch of Jeonju District Court in the Matter of Seongbeom in that court. The requested information is necessary for resolving the issues at stake in the South Korean action. As already discussed, there is nothing in the record indicating that the anonymous speaker is entitled to First Amendment protections.
Further, the scope of the proposed discovery is sufficiently confined to the name, gender, phone number, and date of birth, for the individual(s) who used a specific Google email account during a specific date range. The Court finds that the request is not overbroad, unduly intrusive, or burdensome. See, e.g., hey, 2023 WL 3874022, at *7 (holding subpoena seeking anonymous speaker‘s identity from Twitter was not unduly intrusive or burdensome, where the § 1782 applicant identified the anonymous speaker with sufficient specificity, explained why discovery was sought from Twitter, and demonstrated that Twitter likely had the identifying information in its possession); Seoul Cent. Dist. Ct., 2023 WL 2394545, at *4 (allowing discovery of information from Meta regarding the names, dates of birth, email addresses, cell phone numbers, and IP addresses associated with specific user accounts where the request was “narrowly tailored to seeking the information that is necessary to identify the identity of the putative defendants“); Assef v. Does 1-10, No. 15-cv-01960-MEJ, 2015 WL 3430241, at *2 (N.D. Cal. May 28, 2015) (allowing discovery of documents sufficient to identify the names, addresses, telephone numbers, and IP and email addresses of individuals or entities who created, owned, and operated a blog).
Accordingly, the Court finds that all four discretionary factors weigh in favor of granting the instant ex parte application. The fact that Google does not oppose the relief sought by the USA in its application (subject to reservation of rights to object to the underlying subpoena) further supports the exercise of discretion to grant the application.
IV. APPOINTMENT OF A PERSON UNDER § 1782 – A COMMISSIONER
Whether or not to grant the USA‘s ex parte application does not end this Court‘s inquiry. In exercising its authority, the Court must also properly exercise its discretion in crafting the terms of the discovery being authorized. The Court next addresses the USA‘s request to appoint AUSA Mainardi as Commissioner for purposes of issuing the subpoena for the authorized discovery. [Dkt. 1-1 at 1].
A. What Is a Commissioner or “Person” Appointed under § 1782
An order authorizing discovery under § 1782 “may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.”
Historically, there have been two means by which to obtain evidence located in foreign jurisdictions: (1) letters rogatory; and (2) commissions. Note, Reciprocity in Execution of Letters Rogatory, 58 YALE L. J. 1193 (1949); Stahr, Discovery, 39 VA. J. INT‘L L. 597, 600 (observing that “English courts at the time of the American Revolution” recognized both “letters rogatory” and “commissions,” and stating that “[e]arly United States courts were familiar with these devices“); see Young v. U.S. Dep‘t of Justice, 882 F.2d 633, 635 (2d Cir. 1989) (describing “requests for court-appointed commissioners” as one of the “ancient tools of international litigation“).
A “letter rogatory” is a well-known type of “letter of request” for seeking international discovery assistance from one court addressed directly to another court in a different jurisdiction. Intel, 542 U.S. at 247 n.1; see Tiedemann v. The Signe, 37 F. Supp. 819, 820 (E.D. La. 1941) (“[Letters rogatory are the medium, in effect, whereby one country, speaking through one of its courts, requests another country acting through its own courts and by methods of court procedure peculiar thereto and entirely within the latter‘s control, to assist the administration of justice in the former country[.]“); see
By contrast, the basic alternative to a letter rogatory is a commission, whereby one court “commissions” an official to obtain evidence located within a foreign jurisdiction. GARY B. BORN & PETER B. RUTLEDGE, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 1031 n.174 (Wolters Kluwer Law & Business, 5th ed. 2011) (“Commissioners are persons authorized by court order to preside over the taking of evidence in specified circumstances.“). There is a “broad distinction” between these two procedural devices. Note, Reciprocity, 58 YALE L. J. 1193, 1194 n.2. With respect to commissions, “the rules of procedure are established by the court issuing the commission, and are entirely under its control.” Id.
International judicial assistance by use of letters rogatory has been available in the United States by statute since the mid-nineteenth century. David Rubinstein, Judicial Assistance as Intended: Reconciling § 1782‘s Present Practice with its Past, 123 COLUM. L. REV. 513, 518 (2023); see Intel, 542 U.S. at 247-49 (discussing the history of § 1782). The original statute enacted by Congress in 1855, entitled “An Act to Prevent Mis-Trials in the District and Circuit Courts of the United States, in Certain Cases,” authorized federal circuit courts upon receipt of foreign letters rogatory to appoint “a United States commissioner” to conduct the examination of witnesses, and empowered the commissioner “to compel the witnesses to appear and depose in the same manner” as in federal court:
[W]here letters rogatory shall have [been] addressed from any court of a foreign country to any circuit court of the United States, and a United States commissioner designated by said circuit court to make the examination of witnesses in said letter mentioned, said commissioner shall be empowered to compel the witnesses to appear and depose in the same manner as to appear and testify in court.
Act of March 2, 1855, ch. 140, § 2, 10 Stat. 630.
However, apparently due to a series of clerical errors, the 1855 Act was omitted from the index of federal codes at the time, leaving federal courts largely unaware of its enactment. Jenna M. Godfrey, Americanization of Discovery: Why Statutory Interpretation Bars 28 U.S.C. § 1782(a)‘s Application in Private International Arbitration Proceedings, 60 AM. UNIV. L. REV. 475, 480 (2010); Harry Leroy Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 YALE L. J. 515, 540 n.77 (1953) (noting that the 1855 Act was incorrectly “indexed in the Statutes at Large only under the heading ‘Mistrials‘“).
In 1863, Congress enacted another statute authorizing discovery in aid of foreign litigation, entitled “An Act to facilitate the taking of Depositions within the United States, to be used in the Courts of other Countries, and for other Purposes.” Act of March 3, 1863, ch. 95, § 1, 12 Stat. 769; In re Letter Rogatory from Justice Ct., Dist. of Montreal, Can., 523 F.2d 562, 564 (6th Cir. 1975). Omitting the prior statute‘s language regarding the appointment of a “United States commissioner,” the 1863 Act allowed a federal court, in response to letter rogatory or commission from a foreign court, to compel a United States witness to attend and provide testimony for the foreign case “before the officer named in such commission or letters rogatory,” but only if: (1) the United States and the
In the late 1940s, Congress apparently “rediscovered” the 1855 Act while reviewing and restating the federal judicial code. Stahr, Discovery, 39 VA. J. INT‘L L. 597, 602. Prompted by the anticipated post-World War II growth in international commerce and litigation, Congress in its 1948 restatement adopted the “general” approach of the 1855 Act and rejected the “limitations” of the 1863 Act. Id.; Jones, International Judicial Assistance, 62 YALE L. J. 515, 558 (“At the end of hostilities, the surge of ‘international’ litigation again pointed up the critical inadequacy of our extraterritorial procedures.“). The resulting 1948 Act, now codified as
B. The Scope of Authority of a “Person” or Commissioner under § 1782
Under § 1782, the “person” appointed to receive discovery (whether designated by the Court as “Commissioner” or not) has the inherent power “to administer any necessary oath and take the testimony or statement” sought.
The order [granting a § 1782 application] 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.
The statute thus appears to contemplate that the “person” to be appointed would, first, be charged with taking testimony, and second, be charged with receiving the produced documents or things, both largely ministerial tasks. See Edward C. Weiner, In Search of International Evidence: A Lawyer‘s Guide Through the United States Department of Justice, 58 NOTRE DAME L. REV. 60, 66 (1982) (“The commissioner should subpoena the witness (or
Under § 1782, the Court‘s discretion to appoint a particular “person” to receive evidence further includes the discretion to determine and set the bounds of the practices and procedures that such “person” will follow.
Accordingly, the language of the district court‘s order granting the § 1782 application
should determine the scope of the appointed person‘s power. In re Request for Jud. Assistance from Seoul Dist. Crim. Ct., Seoul, Kor., 428 F. Supp. 109, 112 (N.D. Cal. 1977) (holding appointed commissioner exceeded his authority by denying a
C. Whether Appointing a “Person” or Commissioner under § 1782 Is Appropriate
The fact that
The circumstances under which a court should appoint a commissioner is an area of the law that remains relatively undeveloped. Courts tend to appoint commissioners to receive evidence where the discovery request is made by, or on behalf of, a foreign government or tribunal. Smit, International Litigation, 65 COLUM. L. REV. 1015, 1027 (“While the court is free to select any person it deems appropriate, it ordinarily should appoint the person designated by the foreign or international tribunal or by foreign law.“); see In re Sungrove Co., No. 22-me-80225-JSC, 2022 WL 4468275, at *1 (N.D. Cal. Sept. 26, 2022) (“When it comes to requests directlyfrom foreign courts, district courts typically handle Section 1782 discovery requests in the context of an ex parte motion for an order appointing a commissioner.“) (collecting cases). Ensuring that evidence is received by an appointed Commissioner (or “person“) may be influenced by the laws or practices of most foreign countries, particularly civil law jurisdictions, which place “great weight” on evidence being gathered by judicial authorities. Weiner, In Search of International Evidence, 58 NOTRE DAME L. REV. 60, 65-66; see Smit, International Litigation, 65 COLUM. L. REV. 1015, 1027 n.74 (“Foreign courts and litigants frequently and understandably prefer to follow their own procedure in obtaining evidence. Section 1782 permits them to follow this inclination and at the same time to benefit from American compulsion.“).
Courts also tend to appoint commissioners where the evidence sought is particularly cumbersome or otherwise challenging to obtain. See, e.g., In re Letter of Request for Jud. Assistance from the Tribunal Civil De Port-Au-Prince, Rep. of Haiti, 669 F. Supp. 403, 407 (S.D. Fla. 1987) (confirming appointment of commissioner to assist Haitian juge d‘instruction in collecting evidence for use in a sprawling investigation initiated by the Haitian government into “members of the former [Haitian] regime and the [former Haitian President-For-Life‘s] family” regarding “crimes ranging from corruption of public officials to embezzlement, and claims they transferred the tainted funds abroad“); In re Application of Hill, No. M19-117(RJH), 05CV999996, 2007 WL 1226141, at *1 (S.D.N.Y. Apr. 23, 2007) (confirming appointment of commissioner to obtain evidence in connection with “the largest corporate insolvency in the history of Hong Kong“); In re Letter of Request from Amtsgericht Ingolstadt, Fed. Rep. of Ger., 82 F.3d 590, 591 (4th Cir. 1996) (confirming prior appointment of a commissioner to obtain blood sample evidence for use in a German paternity action); see also Stahr, Discovery, 30 VA. J. INT‘L L. 597, 630 (“[I]f a foreign tribunal requests that a specific private person be appointed as commissioner to simplify the discovery process, that person will probably be appointed.“).
D. Qualifications of a “Person” or Commissioner under § 1782
On its face,
While a district court has wide discretion to grant discovery under
Similarly, as discussed, the statute grants the appointed “person” the power to administer oaths, if testimony is to be received. Therefore, a “person” appointed for that duty should, reasonably, understand the process of administering oaths and thus have skills, background, or experience sufficient to provide the Court with confidence that they understand the process of administering oaths and taking testimony in federal court litigation.With the statutory duties informing the Court as to the general characteristics of the type of “person” who would qualify as a Commissioner for appointment, precedent also provides some guidance on the types of persons found qualified to serve under
Although
Indeed, it appears that one court has recognized that, because a
Where, as here, the request for discovery is made on behalf of a foreign tribunal in a civil law country under the Hague Evidence Convention, it is apparently common practice to appoint an Assistant United States Attorney as Commissioner. See, e.g., 19th Civil Ct., 2023 WL 420787, at *3 (“Courts in this district, and others within the Ninth Circuit, have appointed AUSAs as Commissioners and authorized them to obtain requested discovery.“) (collecting cases). In most civil law countries (such as the Republic of Korea), the taking of evidence from private parties falls within the province of the courts; when private parties act to secure evidence controlled by other private parties in a civil law nation without the participation or consent of the nation‘s authorities, the “judicial sovereignty” of the civil law country may be offended. Aerospatiale, 482 U.S. at 555-58 (Blackmun, J., concurring in part and dissenting in part) (quoting 8 Int‘l Legal Materials 785, 806 (1969)); see also Sup. Ct. of Hong Kong, 821 F. Supp. at 211 (Section 1782 “allows for the appointment of a Commissioner to preside over the taking of the evidence in order to make the evidence more admissible in the courts of the country requesting such” and “is a device to bridge the gap between international differences in civil and criminal procedure[.]“).
E. Neutrality of a “Person” or Commissioner under § 1782
Given the lack of definitional language in the statute itself, a few district courts in other circuits have concluded that the appointed “person” could be biased and need not be fully neutralwith respect to the underlying foreign proceedings. See, e.g., Sup. Ct. of Hong Kong, 821 F. Supp. at 211 (“Even if . . . the Commissioner has a direct stake in the outcome of the case . . . that does not disqualify the Commissioner under American law.“); Tribunal Civil de Port-Au-Prince, 669 F. Supp. at 407 (refusing to disqualify appointed commissioner who had “a personal interest in the recovery of assets” in the underlying foreign litigation).
On the other hand, in discussing such cases, at least one secondary source has recognized the potential risks of serious misuse of the process if a person with a direct stake in the outcome is appointed as Commissioner under
Because the statute directs that the
A person appointed as “commissioner” under
Under the
Under current
The Court is cognizant that a Commissioner or “person” appointed under
A person “who is related by affinity or consanguinity within the degree of first cousin to any judge of the court” likewise should not be appointed as master. See
It is therefore reasonable to conclude that, as a minimum standard, a person appointed under
F. Applying These Standards to the Requested Appointment under § 1782 at Issue
In light the analysis herein, the Court concludes that the “person” appointed under
Applying these factors here, the USA requests that AUSA Mainardi be appointed as Commissioner for purposes of the proposed subpoena. [Dkt. 1-1 at 1]. AUSA Mainardi is not counsel in the underlying Korean litigation, has no apparent interest in the outcome of the underlying litigation or the information sought, appears to lack any motive to misuse the evidence sought, is a licensed attorney and member of the bar of this Court with good standing, and has experience litigating actions on behalf of the federal government in this District. Considering the totality of these circumstances, the Court concludes that AUSA Mainardi is an appropriate “person” to serve as Commissioner for purposes of the requested subpoena.
Having determined that AUSA Mainardi should be appointed as Commissioner, the Court next addresses the scope of the appointed Commissioner‘s authority. The USA‘s application does not seek authority beyond the requested subpoena. See generally Dkts. 1, 1-1. Thus, the Commissioner is authorized to follow up with Google on the requested subpoena, take all reasonably necessary steps to enforce
V. THE PROPOSED SUBPOENA
Under
Here, the USA‘s application seeks issuance of a subpoena for certain “information and documents.” [Dkt. 1-1 at 2]. The proposed subpoena attached to the application makes repeated reference to the procedures for production of documents under
The USA‘s application here requests that Google be ordered to send the subpoenaed materials directly (and apparently at Google‘s cost) to the South Korean Court in Seoul, Republic of Korea, along with a verification. [Dkt. 1-1 at 2; Dkt. 1-3 at ¶¶ 3-4]. However, the proposed subpoena attached to the application, which appears to be a standardized form, does not specify a place of compliance—the space on the form was simply left blank. See Dkt. 1-2 at 21. A subpoena that does not specify
To the extent that the USA‘s proposed subpoena seeks to command Google—from its headquarters in Mountain View, California—to produce documents to a foreign tribunal located in Seoul, Republic of Korea, the place of compliance is not “within 100 miles” of the subpoenaed person‘s location, as is required by
requiring a nonparty to produce documents at a place more than one-hundred miles away isinvalid.“); Raap v. Brier & Thorn, Inc., No. 17-MC-3001, 2017 WL 2462823, at *3 (C.D. Cal. July 7, 2017) (quashing a subpoena commanding third party to produce documents in a location that was not within 100 miles of where the third party was located or transacted business).
That Google‘s production of the subpoenaed documents to the South Korean Court might occur via electronic means or through the mail, rather than at a physical location in Korea, does not obviate the requirement that the subpoena must comply with the 100-mile radius rule. See Uniloc USA, Inc. v. Apple Inc., No. 19-cv-01692-EJD (VKD), 2020 WL 6262349, at *2 (N.D. Cal. Oct. 23, 2020) (“While noting in
Further, as it appears that civil law jurisdictions (such as the Republic of Korea) mayrequire or at least prefer that evidence be received by a judicial officer (which is apparently one of the reasons that the appointment of a Commissioner was sought in this case), it makes more sense and comports with notions of comity for the international proceedings involved to require that the Commissioner directly receive the subpoenaed materials from Google, and then the Commissioner in turn will send those materials to the foreign tribunal. This is why the Court‘s July 3rd Order does not grant the application‘s request that Google send the subpoenaed materials directly to the South Korean Court. However, the Court notes that the Commissioner and Google remain free to negotiate and reach agreement on alternative procedures for the logistics for Google‘s production, should they desire. To the extent the July 3rd Order did not expressly instruct the Parties, by this Memorandum the Court instructs the Parties to reasonably discuss edits to the subpoena consistent with the discussion herein, a timeline and procedure for the Commissioner to issue the edited subpoena, for Google to respond, for the Parties to reasonably attempt to resolve any disputes as to the subpoena, and assuming the documents or information are produced by Google, for the Commissioner to receive the produced materials from Google. Further, the Parties are instructed to confer on a reasonable process for the Commissioner to send the received materials to the South Korean Court.
The USA‘s application also requested that Google “provide a copy of the subpoena to the relevant account holder(s)” and give them an opportunity to object and/or file a motion to quash or modify the subpoena. [Dkt. 1-3 at 2 ¶ 3]. Given that the subpoena requests personally identifying information from an otherwise anonymous speaker (or speakers), the Court finds it appropriate to grant this request. See Tagami, 2021 WL 5322711, at *4 (requiring Google provide advance notice to account holders of subpoena requesting their personally identifying information that “intrudes upon [their] privacy interests“); In re Adams, No. 21-mc-80011-VKD, 2021 WL 275478, at *4 (N.D. Cal. Jan. 27, 2021) (“[W]here a proposed subpoena would require Google to disclose identifying information of an account holder, the Court‘s usual practice is to require Google to give advance notice to the account holder and to allow the account holder an opportunity to object to the disclosure.“); Kardas v. Astas Holdings A.S., No. 19-mc-80174-VKD, 2019 WL 3365636, at *3 (N.D. Cal. July 25, 2019) (“The United States proposes to requireGoogle to ‘provide notice of the subpoena to the relevant users of the subject YouTube accounts and afford them the opportunity to file an objection or motion to quash.’ Such notice is appropriate, as such account holders are likely to have an interest in the information that is subject to the subpoena.“) (internal citation omitted).
The USA represents that “Google does not object to the entry of the proposed order accompanying the
The July 3rd Order set a deadline by which the Parties must report to this Court on the completion of the subpoena process. Discovery takes place between the Parties and without direct judicial oversight. A status report is thus necessary for the Court to be apprised on whether and when this matter can be deemed completed. See
CONCLUSION
Having considered all relevant factors and legal requirements, the Court finds that, in its discretion, granting the USA‘s
IT IS SO ORDERED.
Dated: September 5, 2023.
PETER H. KANG
United States Magistrate Judge