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 ...