United States District Court, N.D. California, San Francisco Division
IN RE: REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM THE NATIONAL COURT ADMINISTRATION OF THE REPUBLIC OF KOREA, IN THE MATTER OF MALSAENG CO., LTD
ORDER GRANTING PETITIONER'S APPLICATION FOR AN ORDER TO CONDUCT DISCOVERY FOR USE IN A FOREIGN LEGAL PROCEEDING PURSUANT TO 28 U.S.C. § 1782 [Re: ECF No. 1]
LAUREL BEELER, Magistrate Judge.
Petitioner United States of America filed an ex parte application to take discovery pursuant to 28 U.S.C. § 1782. (Application, ECF No. 1.) That statute allows a district court to order a person residing or found within its district to produce documents or provide testimony for use in a foreign legal proceeding, unless the disclosure would violate a legal privilege. ( See 28 U.S.C. § 1782.) The United States has consented to the undersigned's jurisdiction. (Consent, ECF No. 2.) Upon consideration of the United States's application and the relevant legal authority, the court grants the application.
The National Court Administration of the Republic of Korea requests that the United States Attorney's Office for the Northern District of California obtain information and documents from Google, Inc. a company located in Mountain View, California, which is located in this District. (Memo, ECF No. 1-1 at 1.) The information and documents are sought by the Korean court for use in a lawsuit brought by Malsaeng Co., Ltd. against Young-Sung Kim, for recovery of damages. ( Id. ; see also Declaration of Melanie Proctor, Ex. A, ECF No. 1-2.) Specifically, the Korean court seeks, from February 7, 2013 to the present date, (1) a "list of all the applications sold under the name of seller Defendant Yuong-Sung Kim who registered as a seller with the email address of firstname.lastname@example.org and ID of KevinKim, " (2) the "total number of such applications sold, " (3) the "retail prices of each of such applications, " and (4) "the total net amount actually paid to the Defendant after deduction of any fees or expenses." (Declaration of Melanie Proctor, Ex. A, ECF No. 1-2 at 11.)
By letters dated January 21, 2015 and February 24, 2015, the United States Attorney's Office requested that Google, Inc. voluntarily provide the requested information. (Declaration of Melanie Proctor, ¶ 3, ECF No. 1-2 at 1.) On February 27, 2015, Google, Inc. informed the United States Attorney's Office that it will not voluntarily provide the requested information, but it may respond to a subpoena. ( Id., ¶ 4, ECF No. 1-2 at 2.)
On March 2, 2015, the United States filed the pending application. (Application, ECF No. 1.) It asks the court to grant the application and appoint Assistant United States Attorney Melanie Proctor as Commissioner and authorize her to obtain the requested information from Google, Inc.
I. LEGAL STANDARD
28 U.S.C. § 1782(a) provides, 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.
A litigant in a foreign action qualifies as an "interested person" under § 1782. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004). In order to apply for discovery pursuant to § 1782, a formal proceeding in the foreign jurisdiction need not be currently pending, or even imminent. Id. at 258-59. Instead, all that is necessary is that a "dispositive ruling" by the foreign adjudicative body is "within reasonable contemplation." Id. at 259 (holding that discovery was proper under § 1782 even though the applicant's complaint against the opposing party was only in the investigative stage). An ex parte application is an acceptable method for seeking discovery pursuant to § 1782. See In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976) (holding that the subpoenaed parties may raise objections and exercise their due process rights by bringing motions to quash the subpoenas).
A district court has wide discretion to grant discovery under § 1782. Intel, 542 U.S. at 260-61. In exercising its discretion, a district court should consider the following factors: (1) whether the "person from whom discovery is sought is a participant in the foreign proceeding"; (2) "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"; (3) whether the request "conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States"; and (4) whether the request is "unduly intrusive or burdensome." See id. at 264-65.
A district court's discretion is to be exercised in view of the twin aims of § 1782: providing efficient assistance to participants in international litigation, and encouraging foreign countries by example to provide similar assistance to our courts. See Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2004). There is no requirement that the party seeking discovery establish that the information sought would be discoverable under the governing law in the foreign ...