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In re Ex parte Application of Digital Shape Technologies, Inc.

United States District Court, N.D. California

July 20, 2016

IN RE EX PARTE APPLICATION OF DIGITAL SHAPE TECHNOLOGIES, INC., and RADOMIR NIKOLAJEV

          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

          JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE

         Applicants Digital Shape Technologies, Inc. (“DST”), and Radomir Nikolajez (“Nikolajez) filed an ex parte application to take discovery pursuant to 28 U.S.C. § 1782. (Dkt. 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. Here, DST and Nikolajez seek an order granting them permission to issue a subpoena to obtain documents and testimony from a custodian of records from non-party Glassdoor, Inc. (“Glassdoor”). Upon consideration of the application and the relevant legal authority, the Court GRANTS the application.

         BACKGROUND

         DST, and its president, Nikolajev, (together “DST”) are plaintiffs in an action in the Quebec Superior Court, District of Montreal, Canada (the “Canadian Action”). See Digital Shape Technologies Inc. and Radomir Nikolajev v. Kelly Mikulec, Case No. 500-17-080160-131. In the action, DST alleges that Kelly Mikulec, a former DST employee, provided false and defamatory statements on Glassdoor’s Canadian website about DST and Nikolajev. (Dkt. No. 2 at ¶ 6.) Glassdoor is not a party to the Canadian Action.

         DST sought documents from Glassdoor in support of its claim for damages. (Dkt. No. 3-1 at ¶ 3.) Glassdoor declined to provide the documents voluntarily so DST filed an application in the Canadian Action to obtain the discovery. (Id.) In response, Glassdoor stated that it did not believe that it was subject to jurisdiction in Canada. (Id.; Ex. A at ¶ 5.) The Canadian court granted DST’s application on June 16, 2016 noting that Ms. Mikulec admitted she made the statements at issue (known as the “March 7, 2013 review”). (Id. at ¶ 4.) The court ordered Glassdoor to provide:

(1) a copy of all reviews, ratings and comments with respect to Digital Shape Technologies Inc, notwithstanding the fact that they have since been removed;
(2) the submission (posting) date and time of the reviews, ratings and/or comments as well as the period during which they were published;
(3) the email address and IP address of the user who posted the March 7, 2013 review and rating [], as well as the URL corresponding to their submission;
(4) the Google Analytics statistics reports relating to the March 7, 2013 review and rating [], including the number of users having reviewed the March 7, 2013 review and rating [], the time and date of viewing, the city associated with the IP addresses of these users, as well as their IP addresses;
(5) the number of individuals having indicated that the March 7, 2013 review and rating [] was “helpful”, their IP addresses as well as the URL corresponding to the submission of such forms, and the submission date

(Dkt. No. 3-1 at ¶ 25.) The court also ordered “that the IP address be held under seal and be only available to the attorneys of the parties and their experts subject to complete confidentiality.” (Id. at ¶ 26.) On June 27, 2016, the court issued a rectified judgment which DST served by U.S. mail on Glassdoor. (Dkt. No. 3-1 at 8 (Ex. B).)

         DST thereafter filed the underlying ex parte application in this Court on July 15, 2016. It asks the Court to grant the application for judicial assistance and permit DST “to subpoena documents from Glassdoor consistent with the order made by the Quebec court, as well as the testimony of a custodian of records to establish foundation for the documents.” (Dkt. No. 1 at 10.)

         LEGAL ...


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