United States District Court, N.D. California
IN RE EX PARTE APPLICATION OF PRO-SYS CONSULTANTS
ORDER GRANTING REQUEST FOR AN ORDER TO CONDUCT
DISCOVERY FOR USE IN A FOREIGN LEGAL PROCEEDING PURSUANT TO
28 U.S.C. § 1782 Re: Dkt. No. 1
DONNA
M. RYU, Magistrate Judge.
Applicants
Pro-Sys Consultants and Neil Godfrey (together,
"Applicants") filed an ex parte
application seeking permission to issue a deposition subpoena
pursuant to 28 U.S.C. § 1782 to obtain testimony for use in a
proceeding before the Supreme Court of British Columbia,
Canada. Ex Parte Application ("Application")
[Docket No. 1]. Having considered the Applicants' request
and the relevant legal authority, the court grants the
application.
I.
BACKGROUND
Applicants
are plaintiffs in a certified class action now pending in the
Supreme Court of British Columbia, Vancouver Registry, Canada
(the "Canadian Court"). In Pro-Sys Consultants
and Neil Godfrey v. Microsoft Corp. and Microsoft Canada
Co./Microsoft Canada CIE, No. LO43175 (the
"Canadian Action"), Applicants allege that
Microsoft engaged in anticompetitive conduct globally with
respect to the markets for operating systems, middleware, and
applications software from 1988 to the present. Declaration
of Robert J. Gralewski, Jr. [Docket No. 2], Ex. A (Fifth
Further Amended Statement of Claim). Microsoft denies the
allegations. Gralewski Decl. ¶ 3, Ex. B (Statement of
Defence). In connection with the Canadian Action, Applicants
seek to subpoena Louis John Doerr III, who is a technology
venture capitalist at the firm of Kleiner Perkins Caufield &
Byers ("KPCB"), and a former board member of
Netscape. Gralewski Decl. ¶¶ 4-6, Ex. C, Ex. D at 1, E at 18.
Applicants contend that Mr. Doerr possesses first-hand
knowledge of Microsoft's conduct in attempting to halt
Netscape's success as a web browser and prevent it from
growing into a full-blown platform for applications that
could minimize the role of Microsoft's dominant operation
system software, Windows. Application ¶ 3.
In
support of this assertion, Applicants rely on a 2000 article
published in Wired Magazine, referencing Mr. Doerr and an
email he received from John Lazarus in or around 1995.
Application ¶ 3; Ex. E at 5, 17-18. Based on this
information, counsel for Applicants avers that he
"believe[s] in good faith that testimony from Mr. Doerr
will assist Applicants in proving the allegations against
Microsoft regarding its anticompetitive conduct in relevant
software products markets." Gralewski Decl. ¶ 11.
Applicants
ask this court to appoint Plaintiffs' counsel Robert J.
Gralewski, Jr. as Commissioner pursuant to section 1782, and
authorize him to issue a subpoena on Mr. Doerr for deposition
testimony and production of documents for use in the Canadian
Action. Id. at ¶ 4. There is no indication that Mr.
Doerr is aware of or takes any position on the pending
application.
II.
LEGAL STANDARD
Applicants
seek discovery pursuant to 28 U.S.C. § 1782, which states as
follows:
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... 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.... 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.
28 U.S.C. § 1782(a). The purpose of section 1782 is "to
provide federal-court assistance in the gathering of evidence
for use in a foreign tribunal." Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004);
see also Schmitz v. Bernstein Liebhard &
Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004) (noting
that section 1782 has the "twin aims" of
"providing efficient means of assistance to participants
in international litigation in our federal courts and
encouraging foreign countries by example to provide similar
means of assistance to our courts") (citation and
quotations omitted).
A
district court is authorized to grant a section 1782
application where (1) the person from whom the discovery is
sought resides or is found in the district of the district
court to which the application is made, (2) the discovery is
for use in a proceeding before a "foreign or
international tribunal, " and (3) the application is
made by the foreign or international tribunal or "any
interested person." 28 U.S.C. § 1782(a); see
also Intel, 542 U.S. at 246-47; In re
Republic of Equador, No. C-10-80255-CRB (EMC), 2010 WL
3702427 at *2 (N.D. Cal. Sept. 15, 2010).
"However,
simply because a court has the authority under § 1782 to
grant an application does not mean that it is required to do
so." In re Republic of Equador, 2010 WL 3702427
at *2 (citing Intel, 542 U.S. at 264). The Supreme
Court has identified several discretionary factors that a
court should take into consideration in ruling on a Section
1782 request: (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." Intel, 542 U.S. at
264-65.
III.
ANALYSIS
A.
Authority ...