United States District Court, N.D. California
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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